FEDERAL COURT OF AUSTRALIA

DEU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 864

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as taxed or agreed.

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

REASONS FOR JUDGMENT

MORTIMER CJ:

INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court of Australia (as that Court was then known): DEU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2345. The FCC dismissed an application for judicial review of a decision of the Immigration Assessment Authority made on 31 July 2019 to affirm a decision of a delegate made on 1 July 2019 to refuse to grant the appellant a Safe Haven Enterprise visa. The appeal turns on how the FCC dealt with the appellant’s contentions concerning the IAA’s refusal to accept new information he sought to put before it.

2    This proceeding was originally docketed to and heard by Farrell J. Her Honour is due to retire on 1 August 2023, and the proceeding was re-allocated to me on 30 June 2023. The parties were given an opportunity to make further submissions and to consider whether they wished to have a further hearing before me. The parties elected not to make further submissions, and not to request any further hearing. I have considered all the materials before Farrell J, including the transcript of the hearing.

BACKGROUND

3    The appellant is a national of Pakistan. He claimed to be ethnically and religiously a Bangash Shia from an area within what the IAA found to be the former Federally Administered Tribunal Area (FATA), now part of Khyber Pakhtunkhwa. He arrived in Australia on 13 July 2013 at Christmas Island and was classified as an unauthorised maritime arrival pursuant to s 5AA of the Migration Act 1958 (Cth).

4    The appellant applied for the visa on 27 September 2016. In that application and the accompanying documents, he claimed to fear harm based on his ethnicity (Bangash-Pashtun), his religion (Shia Islam) and the proximity of his home to sites of attacks by extremist groups such as the Taliban, Laskar-e-Jhangvi, Sipah-e-Shaba Pakistan and the Islam State of Iraq and Syria (ISIS). Relevantly to the ground of appeal, on 10 October 2018, the appellant’s then legal representative provided to the Department of Home Affairs:

(a)    a letter from the appellant’s psychologist dated 5 October 2018 (2018 psychologist report) which indicated that in April 2016 he suffered from moderate depression, severe anxiety and severe levels of stress and that he had post-traumatic stress disorder (PTSD) based on a total score of 39, which exceeded the 30 required for that diagnosis. On 22 August 2018 his scores indicated that he suffered from moderate depression, moderate anxiety and normal levels of stress; and

(b)    submissions (October 2018 submissions) which among other things noted:

(i)    evidence of psychological/psychiatric issues; it said:

We highlight that the applicant attended hospital very early in the morning on 13/11/17, was described as an “anxious appearing man”, and was “advised to follow up with GP to consider psychologist referral”. There is also enclosed a letter from Psychologist, [named], detailing interactions with the applicant.

(ii)    a 30 July 2017 report which stated that an estimated 60% of people in the appellant’s town are suffering from post-traumatic stress disorder in the wake of frequent terror attacks in the town;

(iii)    at page 118-119, a report in The Daily Times on 8 November 2016 which stated that (emphasis in the original):

In Pakistan, around 50 million people suffer from common mental disorders for whom there are only 400 trained psychiatrists in the country, which means there is only one psychiatrist available per half-million people. …

[…]

Facilities are underutilised due to the social stigma attached to psychiatric labelling, and a popular misconception that mental illnesses are due to the possession of ‘jinn’ or evil eyes or magic. People consult traditional healers whose caseloads are often dominated by mental disorders.

(iv)    at page 119, a statement that:

country information would suggest, at the very least, some practical difficulty in accessing treatment, and inadequate treatment.

5    The delegate’s decision record, under the heading “Medical – mental health”, noted the 2018 psychologist report and said (in reliance on a report cited as “Pakistan - CI171215114545084 - Mental Health Care - CR837DFFB4”):

In Pakistan, mental health care is part of the primary health care system; whilst 70-80 per cent of outpatient visits occur through the private sector. Health care in Pakistan is primarily delivered through the private sector, with providers including major private hospitals, NGOs and traditional healers. Mental health professionals and services are concentrated in urban centres. Reports indicate that the number of services available in ratio to the size of the population is inadequate, nevertheless, mental health services are available to the applicant in his home country of Pakistan.

(Footnotes omitted.)

6    On 1 July 2019, the delegate refused to grant a protection visa, and in accordance with the procedures under the Act, on 4 July 2019, the delegate’s decision was referred to the IAA.

7    On 26 July 2019, the appellant’s representatives gave information to the IAA (July 2019 information) including:

(a)    two further reports from his psychologist dated 8 July 2019 and 22 July 2019 (2019 psychologist reports). The reports were to the effect that the appellant’s mental health had deteriorated considerably since his protection visa application had been refused. The reports included:

(i)    an assessment that the appellant was suffering extreme severe depression, extreme severe anxiety, and extreme severe levels of stress;

(ii)    a diagnosis of PTSD, noting that a PTSD test score of 30 is sufficient for the diagnosis and the appellant’s score was 75 on 8 July 2019; and

(iii)    the observation that the appellant “will only get better psychologically if he feels safe”;

(b)    an Al Jazeera article, dated 7 October 2015, titled “Pakistan’s mental health problem: Psychiatric problems still carry a huge stigma in the country, and Pakistani citizens are paying the price”.

8    The information was accompanied by submissions from the appellant’s representatives (July 2019 submissions) as to why there were exceptional circumstances to justify the IAA taking the information into consideration under s 473DD of the Act. It included a quotation from the Al Jazeera article:

One instance in which the delegate did provide consideration of the individual experiences of [the appellant] was in regard to his mental health. In this regard, we note further evidence has been provided as to the extent of [the appellant’s] mental health issues, which have deteriorated since he was made aware of the delegate’s decision. However, the delegate’s conclusion that the availability of mental health treatment in Pakistan, despite inadequacy, was sufficient to allay any concerns in this respect, fails to appreciate how extreme the inadequacy of mental health services in Pakistan is. Al Jazeera reports:

‘Pakistan has one of the lowest mental illness patient-to-doctor ratios in the world. In a seminar held earlier this year in Karachi, a prominent Pakistani doctor revealed that Pakistan has only 380 trained psychiatrists — meaning that there is roughly one psychiatrist available per half-million people. The result is that even when patients fighting something as common as depression or anxiety recognize their symptoms, overcome the stigma, gain the support of their families and start looking for medical help, there simply isn’t much help to be had.’

We submit the updated report of [the psychologist] should be regard [sic] as exceptional, as it documents a material deterioration in the applicant’s mental health since the time of the delegate’s decision. To exclude this information would be unfair on [the appellant].

In light of the above, we disagree with the emphasis placed by the delegate on the country information he presented. The information was not, in our submission, sufficient to outweigh other sources of country information which expressed serious concern about the safety and stability of the region, even when considered cumulatively. Nor was it sufficient to reliably conclude that there was not a real chance of persecution, or real risk of significant harm, faced by [the appellant] in Pakistan on the basis of his ethnic and/or religious identity.

We submit that contrary to the findings of the delegate, the IAA should assess [the appellant] faces a real chance of persecution in [the appellant’s town] on account of his Pashtun-Bangash ethnicity and/or Shia faith in the reasonably foreseeable future. We also submit that given the stigma attached to people with mental health issues in Pakistan the [IAA] should accept [the appellant] will suffer discrimination that is sufficient to constitute significant harm should he be returned to Pakistan.

(Original emphasis in italics, added emphasis in bold; footnotes omitted.)

9    As I explain later in these reasons, the parts in bold demonstrate that there was no “new claim” put to the IAA, of the kind outlined in submissions before this Court. Or, if it was intended to be such a thing, it was not reasonably and objectively discernible by the IAA.

10    On 31 July 2019, the IAA affirmed the decision under review. In its decision record, it set out its reasons why it was not satisfied there were exceptional circumstances to justify considering the July 2019 information.

APPLICABLE LEGISLATIVE PROVISIONS

11    At the time of the IAA decision, s 473DD provided:

473DD     Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

12    The statutory term “new information” means “communication of knowledge about some particular fact, subject or event” that was not before the delegate at the time the delegate made their decision, and which the IAA considers “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision”: Minister for Immigration and Border Protection v CED16 [2020] HCA 24; 380 ALR 216 at [21] and [23], quoting Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [24] and CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140 at [6].

13    In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494, the High Court described the interrelationship between the limbs of s 473DD (at [11]):

Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

(Emphasis added.)

THE IAA’S DECISION

14    The key part of the IAA’s decision relevant to the FCC decision and the ground of appeal before this Court is how it dealt with the complementary protection aspects of the appellant’s claims.

15    At [4]-[8], the IAA set out its consideration of whether to accept the July 2019 information and July 2019 submissions under s 473DD of the Act. At [4]-[5]:

On 12 July 2019 the Authority received a one page report from … a psychologist who has been treating the applicant and had previously provided a report dated 5 October 2018. The report is dated 8 July 2019. There was no accompanying explanation as to how this information might meet s.473DD(b), as required by the Authority’s Practice Direction. A further report dated 22 July 2019 was provided with submissions from the representative. The report dated 22 July 2019 repeated the information contained in the 12 July 2019, with additional information. Some of the information in the reports is a repeat of the earlier report provided to the delegate, but much of it is new information.

I accept the reports dated 8 and 22 July 2019 from the psychologist are new information and that they could not have been provided to the Minister before the decision was made, as they report on the applicant’s health post-decision. I am satisfied s.473DD(b)(i) is met. I have considered whether s.473DD(a) is satisfied. The information on the applicant’s current condition, the treatment he is receiving and what he has told his psychologist is credible personal information, as it has been provided by his treating psychologist. But there is no explanation on how it may affect the consideration of his claims. There is already information before me that the applicant suffers from depression, anxiety, stress and post-traumatic stress disorder in the report from [the psychologist] dated 5 October 2018. I accept the applicant suffers from these conditions. The only explanation from the representative on why they say there are exceptional circumstances to consider it is because the applicant’s health has deteriorated since receiving the refusal from the delegate and it would be unfair to the applicant not to consider it. I accept the refusal decision would have distressed the applicant, and given his mental health conditions, it is not exceptional that in the period immediately after receiving the adverse decision he has experienced a worsening of symptoms. In the absence of any explanation from the applicant on the relevance of the new information regarding his current health, and the fact there is already information before me of his mental health conditions which I accept, I am not satisfied there are exceptional circumstances to justify considering this new information. I am not satisfied s.473DD(a) is met and therefore I must not consider it.

(Emphasis added.)

16    At [6], the IAA deals with a new claim it identifies in the 2019 psychologist reports relating to the appellant’s profile in his community, and sets out reasons why it is new information and not accepted for consideration under s 473DD of the Act. At [7], the IAA accepts the July 2019 submissions, and a number of documents that accompanied the July 2019 submissions, on the basis that they were not new information. Those findings are not impugned on the appeal.

17    The IAA then goes on to find at [8], in relation to seven other documents that included the Al Jazeera article:

The remaining 7 documents are all country information that pre-date the decision. They could have been provided to the delegate before the decision was made. I note the previous representative provided a submission of 161 pages to the delegate, the majority of which referred to country information. There is no explanation from the applicant why this new country information was not or could not have been provided to the delegate, or how these particular reports may include credible personal information or may have affected the consideration of the claims. Given the variety and considerable amount of country information already before me, and the lack of explanation from the applicant why I should be satisfied exceptional circumstances exist to consider further country information that pre-dates the decision, and where no such circumstances are apparent to me, I am not satisfied there are exceptional circumstances to justify considering these 7 country information reports or articles.

18    At [31], the IAA states that it will consider the appellant’s health claims as part of its complementary protection assessment. Having found at [32] that the appellant does not meet the refugee criteria in s 36(2)(a) of the Act, the Authority deals with his mental health claims at [36]:

The applicant claimed he would suffer significant harm if returned to Pakistan for reason of his health issues. He did not make this claim in his written statement, but said at the SHEV interview he could not return to Pakistan because of the stress and his health, and that he would not be able to work with these conditions. I note his health has not prevented him from working as a driver in Australia. The applicant provided country information that there is some social stigma attached to psychiatric illnesses in Pakistan. However that information also stated illnesses such as PTSD, anxiety and depression are increasingly common in [the appellant’s town] due to the terrorist related events that have occurred there, indicating some diagnoses and acknowledgement in his community of such illnesses. The applicant claims his younger brother was psychologically affected by a bombing in 2015, and there is no evidence his brother has been stigmatised or harmed by his family or community for this reason. On the information before me, I do not accept the applicant will be stigmatised or mistreated in a way that constitutes significant harm for reason of his health issues. I accept the applicant may not have access to the same level of health care in [his town] that he has had whilst living in a capital city in Australia. There is no information before me however to indicate health treatment would be withheld from him with an intention to inflict cruel or inhuman treatment or punishment or with an intention to inflict degrading treatment or punishment. I find any difficulty he may have in accessing medical treatment would not amount to significant harm as defined by s.36(2A).

(Emphasis added, footnotes omitted.)

19    The IAA concluded that the appellant did not meet the complementary protection criteria under s 36(2)(aa) of the Act, and affirmed the decision not to grant him a visa.

DECISION OF THE FCC

20    There were two grounds of review before the FCC, only the first of which is relevant to the appeal. The first ground before the FCC was expressed as follows:

The [IAA] failed to make a proper assessment of “new information” which had been provided to it, pursuant to s 473DD of the Migration Act 1958 (Cth).

21    In relation to the first ground, the FCC found at [42]-[46]:

… it is apparent from the Authority’s reasons that the Authority took into account the whole of the limbs of s 473DD of the Act in determining whether or not there were exceptional circumstances to justify considering the more recent psychologist reports. It is apparent that the Authority understood the applicant’s submissions in relation to being exposed to social stigma because of his mental health, as referred to in paragraph 23 of the applicant’s written submissions and that the Authority expressly referred to it, took it into account and made adverse findings in respect of the applicant’s claims in that regard at paragraphs 31 and 36 of the Authority’s reasons.

Ground 1 inaccurately advances that the Authority suggested that the psychologist’s reports were not credible personal information. The Authority’s reasons are expressly to the contrary. The Authority was not, however, required to accept the new information in relation to the psychologist’s reports merely because it was credible personal information. The Authority provided logical and rational reasons in support of its adverse decision, including the want of any explanation in respect of the relevance of the new information and the fact that the Authority accepted that there is information in relation to the applicant’s mental health conditions which the Authority accepted.

The adverse findings by the Authority under s 473DD of the Act in relation to the psychologist’s report do not reflect any misconstruction or failure to correctly apply s 473DD of the Act in relation to the new information, being the psychologist’s reports dated 8 and 22 July 2019.

There was no finding of the kind advanced in the particulars to ground 1 that the Authority proceeded on an unwarranted assumption. The Authority’s adverse findings cannot be said to lack an evident and intelligible justification for the reasons already summarised.

No jurisdictional error is made out by ground 1.

THE APPELLANT’S ARGUMENTS IN SUMMARY ON THE APPEAL

22    The single ground of appeal reflects ground 1 in the FCC, albeit with different and more extensive particulars:

1.     The primary judge erred in holding (at [42] et seq) that the second respondent (Authority) did not err in law in applying s 473DD of the Migration Act 1958 (Cth) (Act) in relation to new information, namely, two psychological reports dated 8 and 22 July 2019 (Psychologist’s Reports) and the Al Jazeera report dated 7 October 2015 (Al Jazeera Report), all of which were relied upon to support the appellant’s new claim of significant harm arising from the stigma attached to psychiatric illness in Pakistan.

Particulars

a.    The appellant gave new information to the Authority in the form of the Phycologist [sic] Reports and the Al Jazeera Report. This information was given in support of a new claim arising after the 1 July 2019 decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the appellant a protection visa (Delegate’s Decision).

b.    The Psychologist’s Reports were to the effect that the Psychologist had seen the appellant regularly since 9 March 2018, including on three occasions since the Delegate’s Decision and the appellant’s mental health had deteriorated considerably since that decision.

i.    The Psychologist diagnosed the appellant with “extreme severe depression, extreme severe anxiety, and extreme severe levels of stress”.

ii.    The Psychologist diagnosed the appellant with “post traumatic stress disorder”, noting that a PTSD test score of 30 is sufficient for the diagnosis and the appellant’s score was 75.

iii.    The Psychologist concluded: “[The appellant] will only get better psychologically if he feels safe.”

c.    The Al Jazeera Report, titled “Pakistan’s mental health problem”, evidenced widespread degrading treatment of persons with mental health conditions in Pakistan, it:

i.    described the routine humiliation of a man with bipolar disorder who was branded a “lunatic”, psychopath”, and “fit only for a madhouse”;

ii.    described the vilification and stigmatising of people with mental health conditions as “rampant”;

iii.    described “a lack of awareness of mental illness’s causes, symptoms and cures”;

iv.    explained that the stigma and vilification “is sustained by popular belief in …evil spirits”;

v.    stated that Pakistan has only 380 trained psychiatrists, which is “roughly one psychiatrist available per half-million people”;

d.    The appellant’s representative expressly submitted (at [23] of submissions made on 26 July 2019) that “given the stigma attached to people with mental health issues in Pakistan the [IAA] should accept [the appellant] will suffer discrimination that is sufficient to constitute significant harm should he be returned to Pakistan”, which understood in context was a claim that the appellant will be subjected to degrading treatment of the kind described in the Al Jazeera Report.

e.    The Authority was satisfied that the Psychologist’s Reports met s 473DD(b)(i), and was satisfied the information was “credible personal information”, but said “there is no explanation on how it may affect the consideration of his claims” (at [5]). On that basis, the Authority was not satisfied that the Psychologist’s Reports met s 473DD(a).

f.    In forming the states of satisfaction particularised in (e) above, the Authority erred in law insofar as it did not consider the claim in (d) above having regard to the information in (b) and (c) above.

g.    The Psychologist’s Reports affected the consideration of the appellant’s claims because the “extreme severe” mental health conditions he developed after the Delegate’s Decision made it more likely that he would be subjected to degrading treatment in Pakistan. The Authority could not reasonably fail to be satisfied of s 473DD(b)(ii) in relation to the Psychologist’s Reports.

h.    The Authority was not satisfied that the Al Jazeera Report met s 473DD(b)(i) or (ii), and said: “There is no explanation from the [appellant] why this new country information was not or could not have been provided to the delegate, or how these particular reports … may have affected the consideration of the claims” (at [8]). On that basis, the Authority was not satisfied that the Al Jazeera Report met s 473DD(a).

i.    In forming the states of satisfaction particularised in (g) above, the Authority erred in law insofar as it did not consider the claim particularised in (d) above having regard to the information particularised in (b) and (c) above.

j.    The Al Jazeera Report could not have been provided to the Delegate before the Delegate’s Decision, because it was provided to the Authority in support of a new claim arising after the Delegate’s Decision, namely, that during the period following the Delegate’s Decision the appellant’s mental health deteriorated to such “extreme severe” conditions that he now faces a real risk of degrading treatment in Pakistan. In those circumstances, the Authority could not reasonably fail to be satisfied of s 473DD(b)(i) in relation to the Al Jazeera Report.

k.    The Authority failed to evaluate the significance of the Psychologist’s Reports and the Al Jazeera Report for the appellant’s claim that he faces a real risk of degrading treatment in Pakistan due to his extreme severe mental health conditions: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [105].

(Emphasis added.)

23    Thus, the appellant’s central contention focusses on the proposition that the appellant was making a “new claim” of harm before the IAA, and that the new information he sought to provide was said to support that new claim. The “new claim” is said to derive from the information in the Al Jazeera news article, buttressed by the 2019 psychologist reports in terms of how the appellant fell within the circumstances outlined in that news article. The new claim was that the appellant would, as a result of the stigma that attaches to mental health conditions in Pakistan, suffer increasing discrimination that is sufficient to constitute significant harm as his condition deteriorates. The appellant contends that although mental health was raised in the submissions and evidence before the delegate, and thus part of the review material referred to the IAA, those submissions were limited in scope to the adequacy of access to treatment and did not take into account the subsequent deterioration in his mental health.

24    In oral submissions, counsel for the appellant contended that the Al Jazeera article should not have been assessed as information that could have been provided to the delegate before their decision. This was said to be because the appellant’s condition worsened after the delegate’s decision had been made. On that basis, the Al Jazeera article would have satisfied s 473DD(2)(b)(i), and should have been assessed for exceptional circumstances under s 473DD(2)(a).

25    In relation to the 2019 psychologist reports, the appellant relies on AUS17 as authority for the proposition that the criterion in s 473DD(2)(b)(ii) is a mandatory relevant consideration to the criterion of “exceptional circumstances” in s 473DD(a), which itself requires an “evaluation of the significance of the new information in the context of the referred applicant’s claims more generally”: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [105]; see also Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 264 FCR 249 at [50]-[54], [69].

26    The appellant contends that, having accepted that the 2019 psychologist reports were “credible” and “personal information” within the meaning of s 473DD(b)(ii), the principal reason the IAA did not find exceptional circumstances justifying their consideration was that “there is no explanation on how it may affect the consideration of his claims” (at [5]). The appellant submits that the IAA was aware of his claim to fear harm due to his mental health condition, having agreed to consider the July 2019 submissions, which refer to both discrimination in Pakistan resulting from the stigma attached to mental health conditions, and the Al Jazeera article. The appellant contends that a proper consideration of that information should have resulted in the IAA appreciating how the 2019 psychologist reports were relevant.

27    The appellant contends that without the Al Jazeera article documenting the extent of stigma in Pakistan, the IAA could not understand the relevance of the description of his worsening condition in the 2019 psychologist reports, in terms of assessing the prospect of escalating stigma and escalating discrimination sufficient to constitute significant harm. It was the new diagnoses, elevating the appellant’s condition to a level of psychiatric illness, that gave rise to a real chance he would be the subject of the degrading treatment described in the Al Jazeera report.

28    Insofar as the FCC held the IAA’s reliance on the absence of an explanation was sufficient, and also relied on the IAA’s finding that there was information about the appellant’s mental health conditions which the IAA accepted, the appellant contends the FCC erred, essentially for the reasons outlined above.

CONSIDERATION

29    The appellant’s claim to fear harm due to his mental health condition – including due to stigmatisation – was not a new claim. The country information that the appellant had put to the delegate referred to the stigmatisation of persons with mental illness in Pakistan. That claim was dealt with in the delegate’s decision record set out in [5] above. Both the country information about stigmatisation and the delegate’s decision record formed part of the review material referred to the IAA pursuant to s 473CB.

30    The IAA, correctly, did not consider this to be “new information”. The claim arose sufficiently clearly on the material before the IAA, and the IAA dealt with it at [36]. In particular, the IAA dealt with the stigmatisation claim in the bolded parts of [36] as set out at [18] above. None of the country information before it suggested that stigmatisation worsened with the severity of one’s condition. While the reasons provided by the FCC are somewhat abbreviated and conclusory, there was no error in the FCC finding (at [42]) that the IAA had understood the appellant’s submissions and had dealt with the mental health claim, including claims relating to stigmatisation.

31    It is evident that the IAA did not describe any claim by the appellant to a heightened risk of harm from increasing stigma, due to his deteriorating mental health. However, no such proposition was put to the IAA. The passage in [23] of the July 2019 submissions that “given the stigma attached to people with mental health issues in Pakistan the [IAA] should accept [the appellant] will suffer discrimination that is sufficient to constitute significant harm” does not contend that discrimination or stigma would worsen as DEU19’s mental health condition worsened. Rather, the submission is consistent with the appellant’s claim as originally put. Neither was it self-evident from that submission that the IAA should have understood this argument to constitute a new claim, by cross-referencing the July 2019 submission, the 2019 psychologist report and the Al Jazeera article in that way. Although the July 2019 submissions quoted and referred to the Al Jazeera article, the submissions did not explain to the IAA that the Al Jazeera article was being provided in support of a (new) claim that there exists in Pakistan a variability of discrimination depending on the severity of mental health conditions experienced by individuals.

32    Further, while the Al Jazeera article discusses stigmatisation of mental health, it does not itself make the connection between worsening mental health and worsening stigmatisation. The article discusses the vilification of a Pakistani politician following a news report regarding his bipolar disorder. The article suggests that the vilification was due to his prominent public profile (and speculates that the vilification may have been politically motivated), rather than due to the severity of the politician’s mental health condition. While these aspects of the Al Jazeera article were for the IAA as the merits decision-maker, a proper understanding of the content of the article illustrates why there is no reasonable or objective basis for the IAA to have understood a claim was being made in the way it was put by counsel on the appeal. On the material as put to it, the IAA was correct to find (at [5]) that it had not been provided with an explanation of the significance of DEU19’s worsening condition to his claims.

33    I accept the Minister’s submissions that the IAA assessed the 2019 psychological reports at [5] against the criteria in s 473DD in a manner consistent with the guidance provided by the High Court in AUS17. The IAA considered s 473DD(b)(i), and found that it was met:

I accept the reports dated 8 and 22 July 2019 from the psychologist are new information and that they could not have been provided to the Minister before the decision was made, as they report on the applicant’s health post-decision. I am satisfied s.473DD(b)(i) is met.

34    The IAA then considered s 473DD(b)(ii) and found that it was not met:

The information on the applicant’s current condition, the treatment he is receiving and what he has told his psychologist is credible personal information, as it has been provided by his treating psychologist. But there is no explanation on how it may affect the consideration of his claims. There is already information before me that the applicant suffers from depression, anxiety, stress and post-traumatic stress disorder in the [October 2018 psychologist report]. I accept the applicant suffers from these conditions.

35    Section 473DD(b)(ii) can only become a mandatory consideration in relation to the exceptional circumstances criterion in s 473DD(a) if s 473DD(b)(ii) had been satisfied. As the Minister submitted, the fact that the deterioration of the appellant’s condition occurred after the delegate’s decision does not mean that (asserted) information regarding increased stigma and discrimination in Pakistan for people with more severe mental health conditions could not have been presented to the delegate before their decision.

36    Taking into account those anterior findings, the IAA then (at [5]) found that s 473DD(a) was not met:

The only explanation from the representative on why they say there are exceptional circumstances to consider it is because the applicant’s health has deteriorated since receiving the refusal from the delegate and it would be unfair to the applicant not to consider it. I accept the refusal decision would have distressed the applicant, and given his mental health conditions, it is not exceptional that in the period immediately after receiving the adverse decision he has experienced a worsening of symptoms. In the absence of any explanation from the applicant on the relevance of the new information regarding his current health, and the fact there is already information before me of his mental health conditions which I accept, I am not satisfied there are exceptional circumstances to justify considering this new information. I am not satisfied s.473DD(a) is met and therefore I must not consider it.

37    I also accept the Minister’s submissions about the IAA’s treatment of the Al Jazeera article at [8]. The IAA considered s 473DD(b)(i) and found that it was not met:

The remaining 7 documents are all country information that pre-date the decision. They could have been provided to the delegate before the decision was made. I note the previous representative provided a submission of 161 pages to the delegate, the majority of which referred to country information. There is no explanation from the applicant why this new country information was not or could not have been provided to the delegate, or how these particular reports may include credible personal information or may have affected the consideration of the claims.

(Emphasis added.)

38    As can be seen from the passage in bold above, the IAA also considered s 473DD(b)(ii) and found that it was not met. As the Al Jazeera article predated the decision, there was no reason it could not have been provided to the delegate. Taking into account those anterior findings, the IAA then found that s 473DD(a) was not met:

Given the variety and considerable amount of country information already before me, and the lack of explanation from the applicant why I should be satisfied exceptional circumstances exist to consider further country information that predates the decision, and where no such circumstances are apparent to me, I am not satisfied there are exceptional circumstances to justify considering these 7 country information reports or articles.

39    The IAA did not make the error for which the appellant contends. Accordingly, the conclusions of the FCC are not affected by error.

DISPOSITION

40    The appeal must be dismissed. There is no basis for anything but the usual order as to costs.

Associate:

Dated:    28 July 2023