Federal Court of Australia

DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1166

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review of the applicable migration decision is dismissed.

2.    The applicant is to pay the first respondent’s costs of the application for judicial review to be fixed on a lump sum basis.

3.    On or before 13 October 2023, the parties are to file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement being reached, the determination of an appropriate lump sum figure for the first respondent’s costs is referred to a Registrar for disposition.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The applicant has not had a fortunate life. He was born in what is now known as South Sudan during the second Sudanese civil war. In 1988, at the age of 11, he was forced to become a child soldier in that war. Around 1994 he escaped and obtained refuge in the Kakuma Refugee Camp in Kenya. In September 2001 he entered Australia as the holder of a Class BA Subclass 202 Global Special Humanitarian visa. His father had already entered Australia and became a citizen. However, in 2011 his father returned to Sudan and died there on that visit. The applicant believes his father was murdered because his father was a former soldier. He fears that if he were to return to South Sudan he too will be killed. Otherwise, he has lost contact with his mother and siblings and does not know their whereabouts or if they are dead or alive.

2    The applicant is now 45 years old. As a consequences of childhood experiences, he suffers from post-traumatic stress disorder (PTSD) and depression. He has trouble sleeping. He has flashbacks and nightmares. He is prone to alcohol abuse. He has self-harmed and regularly has suicidal ideation. He has difficulty coping with stress and controlling aggression and anger. In short, through no fault of his own, the applicant suffers from mental illness that renders him a danger to himself and to others.

3    In 2016 he had attempted to strangle a former partner and was only prevented from killing her through police intervention. In September 2018 the applicant was convicted of attempted murder and sentenced to 9 years imprisonment. As a consequence, on 24 April 2020, his visa was mandatorily cancelled pursuant to s 501(3A) the Migration Act 1953 (Cth). As a result of the cancellation of his visa, the applicant no longer had a right to enter or remain in Australia. In the language of the Act, he became an unlawful non-citizen. By reason of that status, upon completion of his custodial sentence, he was taken into immigration detention where he remains. Subject to certain qualifications, an unlawful non-citizen is required to be removed from Australia as soon as practicable. As he is a citizen of South Sudan, ordinarily, if removed from Australia, the applicant would be returned to South Sudan.

4    In May 2020 the applicant made representations to the first respondent (Minister) by which he requested the Minister to revoke the cancellation in accordance with s 501CA of the Act. On 12 May 2022 a delegate of the Minister made a decision not to revoke the cancellation decision. On 25 May 2022 the applicant made an application to the second respondent (Tribunal) for review of the delegate’s decision. On 8 August 2022 the Tribunal made a decision to affirm the delegate’s non-revocation decision and on 7 September 2022 the Tribunal provided written reasons for that decision.

5    Thereafter, the applicant applied to this Court for judicial review of the Tribunal’s decision. He has sought an order for the issue of constitutional writs quashing the Tribunal’s decision and directing the Tribunal to determine the applicant’s review application according to law. The applicant contends that the Tribunal made a jurisdictional error in that it failed to identify and understand the representations the applicant made about ‘another reason’ why the cancellation decision should be revoked. Specifically, the applicant contends that he made a representation to the effect that he is at risk of committing suicide if returned to South Sudan. That representation, the applicant submits, was not identified, understood or evaluated by the Tribunal and, thereby, it failed to perform its statutory review function under s 500(1)(ba) of the Act.

6    For the reasons that follow the application for judicial review should be dismissed.

Legislative Framework

7    Sections 501(3A), 501(6)(a) and 501(7)(c) of the Act provide that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person has a substantial criminal record because the person has been sentenced to a term of imprisonment of 12 months or more and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

8    Pursuant to s 501(5), the rules of natural justice do not apply to a decision made under s 501(3A). However, s 501CA provides a mechanism by which a person whose visa has been cancelled under s 501(3A) may have that decision (referred to as the original decision) revoked. Section 501CA(3) provides that ‘as soon as reasonably practicable after making the original decision’, the Minister must give the former visa-holder written notice setting out the original decision and particulars of relevant information and ‘invite the person to make representations to the Minister … about revocation of the original decision’. Section 501CA(4) provides that the Minister may revoke the original decision if the person makes representations in accordance with the invitation and the Minister is satisfied, relevantly, that there is ‘another reason’ why the original decision should be revoked.

9    Section 496 of the Act makes provision for the Minister to delegate to a person any of the Minister’s powers under the Act. Decisions under s 501CA(4) are usually made by a delegate of the Minister. In those circumstances, the former visa-holder has a right to request the Tribunal to review a decision to refuse to revoke a cancellation decision: s 500(1)(ba). Subject to certain procedural modifications, a review under s 500(1)(ba) is undertaken by the Tribunal in its general division.

10    In deciding whether there is ‘another reason’ why the mandatory cancellation of a former visa-holder’s visa should be revoked, a delegate of the Minister and the Tribunal are bound, by s 499(2A), to comply with any direction given by the Minister under s 499(1) of the Act. In this case, the Tribunal was bound to comply with Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA which is dated 8 March 2021 and commenced from 15 April 2021.

11    Section 5 of Part 1 of Direction 90 contains a preamble that sets out the objectives of the direction. Amongst other things, para 5.1 indicates that the purpose of the direction is to guide decision-makers in performing functions or exercising powers under, relevantly, s 501CA of the Act. Paragraph 5.2 sets out principles that provide the framework within which decision-makers should approach their task of deciding, relevantly, whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent relevant in a particular case) that must be considered in making that decision are set out in Part 2 of the Direction.

12    Section 6 of Part 2 of Direction 90 provides that, informed by the principles in para 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision. Section 7 provides guidance on giving appropriate weight to information and evidence from independent and authoritative sources and that, generally, primary considerations should be given greater weight than other considerations and that one or more primary considerations may outweigh other primary considerations.

13    Section 8 of Part 2 of Direction 90 sets out the primary considerations. These are: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interest of minor children in Australia; and (4) expectations of the Australian community. Paragraphs 8.1–8.4 describe the primary considerations in detail and provide guidance to decision-makers as to the manner in which each of those considerations is to be taken into account.

14    Section 9 of Part 2 of Direction 90 sets out the other considerations. These are: (1) international non-refoulement obligations; (2) extent of impediments if removed; (3) impact on victims; and (4) links to the Australian community. Paragraphs 9.1–9.4 describe the other considerations in detail and provide guidance on the manner in which each is to be taken into account. Relevant to this application is para 9.2 that addresses the extent of impediments if removed.

Tribunal’s decision

15    The Tribunal’s reasons for decision (T) set out the background to the review application, the relevant provisions of the Act and Direction 90 and the issues for determination on the review (T [1]-[14], [18]-[20]).

16    The Tribunal identified the evidence that was before it on the review (T [15]-[17]). The evidence to which the Tribunal made reference included statements of the applicant, a statement of the applicant’s cousin, Mr Kuel Paul, a medical report of a psychiatrist, Dr Jeremy Butler, which had been tendered for the purpose of the applicant’s sentencing hearing, and clinical reports of International Health and Medical Services (IHMS) made during the applicant’s period of detention. As to the materials before the Tribunal, it recorded (T [15]):

The Tribunal has had regard to all the material filed in this matter, including:

o    a statement of the Applicant addressed to the National Character Consideration Centre, Department of Home Affairs dated 14 of May 2020; a letter from the Applicant to the Department of Home Affairs dated 7 October 2020 and further statements of the applicant dated 6 June 2022 and 21 July 2022.

o    A statement of Mr Kuel Paul (cousin of the Applicant) dated 10 March 2021

17    In the applicant’s request for revocation he stated that he has PTSD for which he will not receive treatment in South Sudan. He also said that his life was ‘safe here in Australia’ and that he would be killed if he returned to South Sudan. The applicant identified that he had no support in South Sudan, would not be able to work and that he would return to ‘where all of [his] trauma came from’ and it would ‘feel like the end of [his] life.’ In his personal circumstances form he listed PTSD and depression as diagnosed medical or psychological conditions and that he ‘will not get the treatment that [he has] in Australia due to my … PTSD’. Amongst the materials, the applicant and medical practitioners attributed his PTSD to his experiences as a child in South Sudan and, in particular, as a child soldier.

18    It does not appear that the applicant filed a statement of facts issues and contentions in the Tribunal proceedings. However, he provided a written statement to the Tribunal dated 6 June 2022. In that statement the applicant said that his life will be at risk if he is returned to South Sudan. In this regard he said:

… My life will be at risk if the [Australian government] and Immigration send me back to my country [of origin]. Because my country is still at war I will not have a place to go to as a home as I am [diagnosed] with [post traumatic] stress disorder (PTSD) and also diabetes. [F]or these reasons I will not meet the medical treatments which I am [receiving] here in Australia. I [take] medications [day] and night, and also, I [deal] with depression, [anxiety], mental suicidal [thoughts] and hearing voices. …

19    The medical report of Dr Butler referred to the applicant having previously had suicidal thoughts, but that these had not been as intense in the months prior to the report. The report also recorded that the applicant had said ‘that he would end his life if he was returned to South Sudan.’ The applicant ‘believed that he would invariably be captured, tortured and executed by the same people who executed his father after [his father had] returned to Sudan.’ Dr Butler opined that the applicant suffered PTSD and depression and these illnesses had led to alcohol abuse. He also said that the applicant ‘has had recurring significant suicidal ideation, and this has resulted in numerous presentations to hospital.’ He opined that ‘without appropriate treatment, his symptoms will worsen, and his suicidal ideation will increase to the extent that he will be at moderate risk of [committing] suicide within an intermediate timeframe’. He opined that return to South Sudan would more than likely result in aspects of the applicant’s PTSD becoming elaborated in response to exposure to an environment ‘likely to be substantially triggering’.

20    The IHMS clinical records contain a record of a consultation with a psychologist on 22 December 2021. Part of the entry records the following ‘Impression’ of the psychologist.

Impression: IDC fatigue and fears RE repatriation to Sudan exacerbating [DKY22’s] chronic and complex PTSD related symptoms and thus further exacerbating his suicidal ideations.

I am reluctant to target [DKY22’s] PTSD symptoms via EMDR due to EMDR being contraindicated for people with suicidality, risk of self-harm and substantial trauma exposure. Additionally, clients typically experience further processing/activation of the target memories for 1~4 days post EMDR bilateral stimulation, and thus while in IDC, I am currently not confident [DKY22] will be able to tolerate activated suppressed and/or dissociated material/memories outside of sessions due to [DKY22] reporting not being safe in his environment, i.e., being in IDC with the feared reality that he may be repatriated to Sudan, and as such there is a high risk that following bilateral stimulation his PTSD symptoms may be further exacerbated and thus increased risk of self-harm due to the un-safe environment and reality he is reporting/experiencing, i.e. returning to the country where his father was killed by the Govt over the last few years and [it] is the Geographical region of the content of his PTSD experiences.

21    An earlier record of 8 September 2021 indicates that he had said to a psychiatrist that the applicant felt suicidal most days and he had thought about hanging himself. The record also refers to another self-harm incident from which he had scarring on his arm from cutting it with a knife.

22    There are also records of an actual self-harm incident on 1 March 2022. The applicant had self-harmed causing a mid-penile shaft fascia laceration resulting in a moderate amount of blood loss. The incident report includes statements attributed to the applicant to the effect that he ‘cannot take any more’ and ‘this is the beginning of the end’.

23    There is a record of a consultation on 26 May 2022 with a psychiatrist (Dr Jillian Spencer). It records, amongst other things, under his mental health history that the applicant had multiple hospitalisations in Queensland with suicidal ideation, an attempted suicide in 2015 by jumping from a tree resulting in a hospitalisation and two further suicide attempts in 2015 in which he cut himself on his arm and jumped off a roof. The IHMS clinical records contain many other references to PTSD, depression, self-harm and suicidal ideation.

24    The Tribunal addressed each of the primary and other considerations referred to in Direction 90 and made findings as to whether these were in favour, against or neutral to the exercise of the discretion to revoke the cancellation decision and attributed relative weight to each consideration (T [21]-[89]). Regarding the primary considerations, the Tribunal concluded that: the protection of the Australian community (primary consideration 1) weighed against revocation (T [31]); family violence committed by the non-citizen (primary consideration 2) and the best interests of minor children in Australia (primary consideration 3) were neutral (T [38], [42]); and expectations of the Australian community (primary consideration 4) weighed against revocation (T [72]). Regarding the ‘other considerations’ the Tribunal concluded that: international non-refoulement obligations weighed in favour of revocation (T [76]); the extent of impediments if removed weighed in favour of revocation (T [79]); the strength nature and duration of ties to Australia were not sufficient to warrant revocation (T [88]). The Tribunal made no conclusions regarding impact on victims (T [80]-[82]) or impact on Australian business interests (T [89]).

25    In the course of the Tribunal’s consideration of the primary and other consideration it made various findings of fact or what it appears to have accepted as facts (T [14], [24], [26]-[28], [51]-[58], [60]-[71], [78], [86]-[87]). Amongst other things, the Tribunal records the following matters of relevance to the ground of review.

61.    The Applicant claims that he became very depressed and commenced drinking and felt like taking his own life. He stated he is scared of returning back home as he fears that he will be killed. He asserts that he has a mental issue and identifies that issue as post-traumatic stress disorder.

…

63.    Material has been provided to the Tribunal which appears to be a publication from a website concerning mental health in South Sudan and reports that there are many persons affected with some form of mental health problems extending from mild depression and anxiety to post-traumatic stress disorder. The Tribunal accepts that the Applicant has had a turbulent history due to his relocation from South Sudan to Kenya then relocating to Australia in circumstances where it appears he has not had the benefit of any assistance for his claimed PTSD.

64.    Records of the International Health and Medical Services (IHS) provided to the Tribunal includes a psychiatric report dated 26 May 2022. The report appears to have been prepared by Dr Jillian Spencer. The report is very detailed and records symptoms which have been accepted as PTSD. An entry for 7 March 2022 records a psychiatrist review noting a history of alcohol dependence and in institutional settings a tendency to seek sedative medications. It is apparent that the Applicant has been in receipt of medication of various kinds over many years and there is reference to reported suicidal thoughts. In particular, it notes that the applicant has consumed alcohol from age 25 to alleviate his depression. The Applicant was diagnosed with:

Ongoing complex PTSD and cluster B personality disorder with chronic suicidality and pseudo-hallucinations, history of alcohol dependence, tendency to seek sedative medicines.

…

74.    The Tribunal notes that no independent evidence has been provided that the Applicant would be at risk, other than from the Applicant’s statement and from the observations of his cousin, Mr Paul. The Tribunal also notes that the Applicant departed the country approximately 28 years ago when he was at a relatively young age. Accordingly, the Tribunal questioned whether there is any link between the Applicant and his fear. It notes however that the tribes remain in dispute and there is evidence that there are extra-judicial killings in Sudan. The Tribunal also understands that such consideration, namely tribal rivalry, may extend over a long period and may constitute a very valid reason why the Applicant fears return to his country.

…

78.    The Applicant is now almost 44 years of age. The Applicant has a diagnosed mental condition of post traumatic stress disorder (PTSD which, although treated by drugs, has persisted. The Applicant also has an addiction to alcohol which he asserts is linked to his PTSD because he consumes alcohol in the hope of overcoming his depression. His addiction to alcohol remains current, as evidenced by the IHS records. There is also some evidence that the Applicant has contracted diabetes.

79.    There will be no cultural or language barriers if the applicant were returned to his home country. However, there is no evidence that there are any medical facilities which would be available to treat the applicant for his mental health condition. This is a consideration which weighs in favour of revocation of the decision.

26    The Tribunal then evaluated the various primary and other considerations and considered if and concluded there was not ‘another reason’ for revocation (T [90]-[93]). It concluded that there was not ‘another reason’ and affirmed the delegate’s decision (T [93]). Relevant to the ground of review, the Tribunal said (T [91]):

Visa cancellation is not to be considered as a form of punishment: see the observations in Folau v Minister for Immigration and Border Protection [2016] FCA 1149 at [11] where Pagone J said:

It is well-established that the Minister cannot regard Visa cancellation as a form of punishment for past events.

The primary considerations A and D weigh against revocation. Primary consideration B and C are neutral. Of the secondary considerations, the issues of concern to the Tribunal is the fact of the Applicant’s mental condition, namely PTSD; the lack of evidence concerning treatment available to him if he is returned to his country of origin; and the risk of harm should he be returned the Tribunal is also concerned that there is no proposal [for] any treatment to be made available to the Applicant if he remained in Australia, resulting in the potential for future violence by the Applicant.

27    Nowhere in the Tribunal’s reasons is there any express consideration of the risk of the applicant committing suicide if he were to return to South Sudan or if that risk formed part of the applicant’s impediments if removed from Australia to South Sudan or if that risk otherwise provided ‘another reason’ for revocation of the cancellation decision.

Grounds of review

28    The applicant’s amended grounds of the application are as follows:

1.    The Tribunal erred by failing to identify and understand the representations being made by the applicant concerning the risk of suicide if the applicant returned to South Sudan.

Particulars

a.    The Tribunal had evidence before it:

i.    that the applicant was suffering from “Chronic PTSD with associated nightmares and suicidal ideation” (CB, 1,510)

ii.    that the applicant was at “High risk of suicide if returned to SUDAN;” (CB, 1,185)

iii.    that the applicant was at “Chronically elevated suicide risk” (CB, 1,033) iv. from a psychologist who reported on 22 December 2021 that he was “currently not confident [DKY22] will be able to tolerate activated suppressed and/or dissociated material/memories outside of sessions due to [DKY22] reporting not being safe in his environment, i.e., being in IDC with the feared reality that he may be repatriated to Sudan, and as such there is a high risk that following bilateral stimulation his PTSD symptoms may be further exacerbated and thus increased risk of self-harm due to the un-safe environment and reality he is reporting/experiencing, i.e. returning to the country where his father was killed by the Govt over the last few years and is the Geographical region of the content of his PTSD experiences.” (CB, 491)

b.    The Tribunal did not refer to the evidence before it about the suicide risk of the applicant in its examination of the extent of impediments if the applicant was removed.

Applicant’s submissions

29    The applicant submits that the Tribunal erred by failing to identify and understand his representations concerning the risk of suicide if he is returned to South Sudan. This constitutes a failure to undertake the statutory task pursuant to s 501CA of the Act and is a jurisdictional error.

30    The applicant submits that the Tribunal was required to ‘undertake the assessment by reference to the case made by the [applicant] by [his] representations’. Further, the Tribunal was required to read, identify, understand and evaluate the applicant’s representations: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [22]-[24] (Kiefel CJ, Keane, Gordon and Steward JJ).

31    The applicant submits, in substance, by reference to ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9] and Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 388 at [52], that a failure of a decision-maker to refer to a matter that clearly arose on the materials may indicate that the decision-maker was not persuaded it was of significance or may indicate that the decision-maker did not identify and understand the representation being made. However, it is necessary for the decision-maker to, at least, demonstrate that the representations were identified and understood.

32    The applicant submits that the report of Dr Butler of 24 August 2018, referred to at para [18] of these reasons, contains an express representation to the effect that the applicant ‘would end his own life if he was returned to South Sudan’. The applicant draws attention to the repeated references in Dr Butler’s report to suicidal ideation and to his opinion that, without treatment, the applicant ‘will be at moderate risk of [committing] suicide within an intermediate timeframe’.

33    The applicant also draws attention to the IHMS clinical record of 22 December 2021, referred to at para [19] of these reasons, in which a psychologist recorded that the applicant was of ‘increased risk of self-harm due to the un-safe environment’. The record also refers to suicide and risk of self-harm. The applicant submits the reference to increased risk and an un-safe environment is a reference to his fear of removal to South Sudan where his father was killed.

34    The applicant submits that these direct references to the risk of suicide if he is removed to South Sudan are to be read in a context in which the materials before the Tribunal indicate that the applicant has been diagnosed with PTSD and depression and there are many references to suicidal ideation. Also, there is at least one incident since the applicant has been in immigration detention where he inflicted an injury upon himself (self-harmed). These materials, taken together, so the applicant submits, made a clear ‘representation’ to the effect that an impediment to the applicant if removed to South Sudan is the risk that he will commit suicide or that risk is otherwise a separate ‘other reason’ for revoking the cancellation decision that the Tribunal was required to consider as part of the applicant’s representations to or case in the Tribunal. The materials upon which the applicant relies are referred to at paras [15]-[22] of these reasons. In addition the applicant draws attention to the following other references in the IHMS clinical notes.

(a)    On 26 March 2021 it was recorded that the applicant was at high risk of suicide if returned to Sudan.

(b)    On 8 September 2021 a psychiatrist recorded that the applicant was at a chronically elevated suicide risk.

(c)    On 2 November 2021 it was recorded that the applicant had disclosed his mood was worsening and suicidal ideation increasing.

(d)    On 24 November 2021 it was recorded that the applicant threatened suicide and self-harm.

(e)    On 8 December 2021 it was recorded that the applicant was voicing suicidal thoughts, had chronic PTSD with associated nightmares and suicidal ideation and a chronically elevated baseline risk of self-harm.

(f)    On 9 December 2021 it was recorded that the applicant threatened self-harm.

(g)    On 22 December 2021 a psychologist reported that the applicant was at an elevated risk of self-harm.

(h)    On 1 March 2022 the applicant self-harmed and made threats of suicide.

35    The applicant submits that the Tribunal only made limited references to suicide risk (T [62], [64]). The Tribunal did not acknowledge the evidence regarding the applicant’s suicide risk if returned to South Sudan. Further, the Tribunal’s reference to the risk of harm if he is returned to South Sudan (T [74]) is a reference to his fear that he was at risk of murder if returned to South Sudan, rather than any acknowledgement of the applicant’s suicide risk.

36    The applicant submits that the Tribunal made no reference to the IHMS clinical records or Dr Butler’s report in its consideration of the applicant’s impediments if removed to South Sudan (T [78]-[79). There is no reference to those records or to the applicant’s suicidal ideations, elevated risk of self-harm and actual self-harm attempts. Nor is there any reference to his stated intention to commit suicide if he is returned to South Sudan referred to in Dr Butler’s report.

37    The applicant submits that the absence of any reference to that evidence indicates that the Tribunal did not identify and understand the representations being made and that failure constitutes jurisdictional error.

38    The applicant submits that the Tribunal’s error was material in circumstances where the Tribunal concluded that the fact the applicant continues to consume alcohol to excess and is a danger to the community outweighs all other considerations, including ‘the Applicant’s mental condition, namely PTSD; [and] the lack of evidence concerning treatment available to him if he is returned to his country of origin’ (T [91]).

39    The applicant submits that the Tribunal did not provide reasons as to how the factors were balanced or any indication of the relative weights given to the factors for and against revocation (T [91]-[93]). As such, it is ‘a matter of reasonable conjecture’ that ‘the decision that was in fact made could have been different’ had the Minister considered the applicant’s representations concerning indefinite detention: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [32] (Kiefel CJ, Keane and Gleeson JJ).

Minister’s submissions

40    The Minister largely does not take any issue with the legal principles upon which the applicant relies. However, the Minister emphasises that whether or not the state of the satisfaction required for s 501CA(4) is reached is the subject of an evaluative exercise to be undertaken by the decision-maker, taking into account the representations of the applicant which are clearly articulated or which clearly arise on the materials before them: Plaintiff M1/2021 at [25]. The representations must be considered as a whole and need to be significant and clearly expressed: Plaintiff M1/2021 [24]-[27]; Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 at [47]. The obligation does not extend to considering every statement made in the representations: Plaintiff M1 [24]-[27] It does not require a decision-maker to reach findings of fact or determine (in the sense of decide) the matters raised by a representation. The question is, in summary, whether the decision-maker is satisfied having regard to the representations that there is another reason to revoke the cancellation decision: Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [28].

41    Insofar as the applicant relies upon ECE21, the Minister submits that reliance is misplaced because ECE21 turns on its own facts. In that case the Minister had misunderstood the consequences of his decision as it related to indefinite detention so as to establish a relevant error. There was no such failure by the Tribunal here to understand the consequences of its decision (and so much is not contended by the ground in any event). The Minister submits that it is otherwise uncontroversial that a failure to understand the representations advanced by an applicant may result in a failure to consider those representations.

42    The Minister submits that the applicant made a number of express representations as to why there was another reason the cancellation decision should be revoked none of which raise directly or indirectly that the applicant was at risk of committing suicide if removed to South Sudan. The Minster draws attention to the express representations set out at paras [15]-[22] of these reasons.

43    The Minister submits that it is apparent from those representations that the applicant feared returning to South Sudan because he would be killed on the basis of his Nuer ethnicity, that his PTSD would be exacerbated, that he would not receive the medical treatment he was receiving in Australia and that he would be unable to find employment in South Sudan. The applicant’s representations also addressed the death of his father and that event had exacerbated his PTSD and resulted in the applicant drinking excessively.

44    As to the IHMS clinical records, the Minister submits those records identified that the applicant had a history of suicidal ideation, self-harm and had attempted suicide in the past. They also provided notes of consultations from various health service providers including general practitioners, psychiatrists and psychologists, including (where given) their assessment of the applicant’s mental health and risk of self-harm or suicide at the time of consultation. It is apparent from those records that the applicant’s PTSD and the associated risk or feature of suicidal ideation had been an ongoing issue for the applicant prior to him being incarcerated and thereafter.

45    The Minister submits that the Tribunal expressly said that it had considered the clinical records in evidence and identified particular parts of that evidence in its reasons, including a report or notes of a psychiatrist, Dr Spencer, who had treated the applicant (T [15], [17], [64] and [65]). Dr Spencer’s report sets out in some detail the applicant’s history and previous psychological and psychiatric conferrals, including from 2017 onwards. That history included summaries of earlier clinical reports that had been provided in the IHMS records.

46    The Minister submits that in its reasons for decision, the Tribunal identified the following matters.

(1)    It had received a psychiatrist’s report dated 24 August 2018 that had been tendered in the sentencing hearing relevant to the applicant’s conviction for attempted murder (T [17]).

(2)    The sentencing judge had referred to that psychiatrist’s report and had identified, amongst other things, that the applicant’s diagnoses of PTSD, persistent depressive disorder and alcohol use disorder meant that the applicant did not respond well to what he perceived to be a threat (but, in the case of his attempt at murder, there had been no threat) and nothing in the psychiatrist’s report gave comfort that this was an isolated incident (T [28] and [67]).

(3)    Without treatment, the applicant was at moderate risk of reoffending (T [30]).

(4)    The applicant has a turbulent history and had claimed that he became very depressed and commenced drinking and felt like taking his own life. He was scared of returning home as he fears he will be killed and that he asserted he had PTSD (T [60]-[61], [63]). Although the applicant had obtained work, he had ceased work due to depression and suicidality and had also stated that he was always ‘getting drunk and hurting himself’ (T [62]). The Tribunal also referred to material that had been provided to it concerning mental health in South Sudan and that in the applicant’s turbulent history of relocation from South Sudan to Kenya and then Australia, it appeared he had not had the benefit of assistance for his claimed PTSD (T [63]; see also [70] and [72]).

(5)    The Tribunal referred to the psychiatrist’s report referred to earlier in these reasons and observed it was ‘very detailed and records symptoms which have been accepted as PTSD … It is apparent that the Applicant has been in receipt of medication of various kinds over many years and there is reference to reported suicidal thoughts.’ The Tribunal then set out the diagnosis of ‘ongoing complex PTSD and cluster B personality disorder with chronic suicidality and pseudo-hallucinations’ (T [64]).

(6)    The applicant appeared to have family residing outside Australia, with whom he had contact despite his evidence to the contrary (T [66]).

(7)    As it concerned the applicant’s claimed fear of harm concerning his return to South Sudan as a Nuer person (or the son of his father), there was no independent evidence as to the risk faced by the applicant but noted that the Dinka and Nuer tribes remained in dispute and there is evidence of extra-judicial killings which may constitute a valid reason why the applicant fears return to South Sudan. Whilst the question of whether Australia owed a non-refoulement obligation in relation to the applicant was a matter that the Tribunal deferred unless and until an application for a protection visa was made, it found that the applicant’s claimed fears weighed in favour of revoking the cancellation decision (T [75]-[76]).

(8)    In relation to the extent of any impediments the applicant may face if returned to South Sudan, the applicant had a diagnosed condition of PTSD and an associated or linked alcohol dependence which remained current. While there would be no cultural or language barriers if the applicant returned to South Sudan, there was no evidence that there are any medical facilities which would be available to treat the applicant for his PTSD. That consideration weighed in favour of revoking the cancellation decision (T [79]).

(9)    In considering whether it was satisfied that there was another reason to revoke the cancellation decision, the Tribunal identified those matters that weighed in favour of non-revocation and those that favoured revocation. Of the latter, the Tribunal reasoned as follows (T [91]):

… the issues of concern to the Tribunal is the fact of the Applicant’s mental condition, namely PTSD; the lack of evidence concerning treatment available to him if he is returned to his country of origin; and the risk of harm should he be returned …

47    The Minister submits that the Tribunal balanced or countered those considerations with its concern that there was no proposal as to any treatment to be made available to the applicant if he remained in Australia, and the fact that the applicant continued to consume alcohol to excess and in such a state that he is a danger to the community (T [92]).

48    The Minister submits that it is apparent that the Tribunal had regard to all of the relevant material and understood that the applicant’s diagnosed PTSD included chronic suicidality and that the absence of treatment was clearly a risk factor to the applicant. The Tribunal’s reasons make clear that diagnosis and need for treatment arose whether the applicant was in Australia or South Sudan. That treatment had not occurred and there was no evidence of a plan for treatment if the applicant returned to the Australian community. Similarly, there was no evidence of available treatment in South Sudan. The risk or likelihood of the applicant committing suicide or self-harm was tied to his diagnosed PTSD. It was not geographic and did not otherwise require further elaboration or separate identification from the Tribunal, having been expressly referred to and identified as part of the applicant’s PTSD.

49    The Minister submits that it could not be reasonably concluded that in context and having regard to the Tribunal’s reasons that the Tribunal misunderstood that evidence or overlooked it (let alone any representations made by the applicant). Rather, the Tribunal understood the risk to the applicant from his diagnosed PTSD and that treatment of his mental illness was wanting. Balancing that consideration, and the risk posed by the applicant if he were to be permitted to return to the Australian community, the Tribunal was not satisfied there was another reason to revoke the cancellation decision. That is not demonstrative of misunderstanding. It is the result of a careful and balanced consideration of different and difficult considerations.

50    The Minister submits that the applicant has not established that there was any failure to understand his representations. The Tribunal understood, and considered, those representations and the evidence before it. Having done so, the Tribunal was not satisfied that the potential for the applicant’s PTSD to be untreated in South Sudan was sufficient (of itself or with other considerations) to establish there was another reason to revoke the cancellation decision. That consideration was open to the Tribunal and no jurisdictional error is established.

Consideration

51    The applicant acknowledges that he had not made an express representation to the Minister or the Tribunal to the effect that he was at risk of committing suicide if removed to South Sudan and that was an impediment to his return to that country or was a separate ‘other reason’ for revocation of the cancellation decision. Therefore, the applicant accepted that to succeed on his ground of review it was necessary for him to first establish that such a representation was implicitly made in that, although not articulated, it clearly emerged from the materials before the Tribunal. Next, it was necessary for the applicant to demonstrate that the Tribunal had failed to consider that representation or integer of his representations.

Applicable principles

52    While there was no substantive difference between the parties regarding the applicable legal principles, in particular, the principles drawn from Plaintiff M1/2021 at [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ), it is important to bear in mind that Plaintiff M1/2021 concerned the review of a decision of a delegate of the Minister. In that context, the delegate is directly considering the representations a former visa-holder has made in accordance with an invitation under s 501CA of the Act. In this case, the review concerns the exercise of the Tribunal’s review function under s 500(1)(ba) of the Act.

53    The Tribunal’s function is to review the decision of a delegate of the Minister made under s 501CA(4) and form its own view as to the ‘correct or preferrable decision’ on the basis of the materials before the Tribunal at the time of its decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; (1979) 24 ALR 577 at 419; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98]. The materials before the Tribunal may include additional or different materials to those that were before the delegate. The materials also include documents the Minister must lodge with the Tribunal that are in the Minister’s possession or under the Minster’s control that were relevant to the making of the decision: s 500(6F). The delegate must provide copies of the same documents to the former visa-holder at the time of informing that person of the decision to refuse to revoke the cancellation decision: s 501G(2) (the G documents). In that way, the former visa-holder may become aware of material upon which the delegate has relied for the first time after the refusal decision has been made. Therefore, the nature of the review that the Tribunal was required to perform is informed by the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500 of the Act: see, e.g., Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; (2019) 269 FCR 47 at [62]-[66]. Accordingly, while the principles set out in Plaintiff M1/2021 are generally applicable and draw on established principles that apply to decision-makers in different statutory contexts, those principles are not directed specifically to the exercise of the Tribunal’s review function under s 500(1)(ba).

54    It is also important to keep in mind that the Tribunal (and the delegate) was bound to apply Direction 90. In that context, where the evidence or materials before the Tribunal raise a matter that is made relevant and must be taken into account in accordance with Direction 90, the decision-maker is bound to take that matter into account irrespective of whether or not the former visa-holder has specifically made a representation (or submission) about that matter. For example, if the evidence before the decision-maker identifies minor children in Australia who may be affected by the removal of the former visa-holder, the decision-maker cannot ignore that evidence, but must consider it in the application of Direction 90: e.g., Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [61]-[68].

55    Nonetheless, the passages from Plaintiff M1/2021 to which the parties refer in their submissions emphasise the importance of the representations (or, in the case of review by the Tribunal, the applicant’s case in the Tribunal) to the exercise of the discretion under s 501CA(4). ‘More broadly, the degree of consideration that is necessary is affected by the centrality to the issues of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed. … It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons’. However, ‘[i]t is not necessary in that regard to distinguish between claims and evidence. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error’: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15 at [52]-[53] (and the authorities there cited).

56    The established principles to which the plurality allude in Plaintiff M1/2021 (at [24], [25], [27]) include that a failure to respond to ‘a substantial, clearly articulated argument relying upon established facts’ can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (i.e., a failure to perform the ‘review’ in accordance with the Act and AAT Act): Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] – [32]. Other established principles include a requirement to consider unarticulated arguments or claims that ‘clearly emerge’ from the materials. In Hong (at [69]) the majority considered that the following summary of the principles applicable to the performance of the ‘review’ function under Pt 5 and Pt 7AA of the Act set out in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (at [18]) also apply to review of decisions under s 501CA(4) of the Act.

…

•    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 [in original].)

•    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.

57    In DWN027 v Republic of Nauru [2018] HCA 20; (2018) 355 ALR 238 (at [17], [21]) the High Court emphasised that a decision-maker’s obligation to go beyond the case articulated by an applicant is confined to unarticulated claims which are apparent on the face of the material before the decision-maker. The Court noted that ‘the decision of the decision maker must be considered in light of the basis on which the application was put before the decision maker and not upon some entirely different basis that may only occur to the [applicant’s] lawyers at this later stage of the process’. The Court cited, with approval, (at [17]) the following observations of Kirby J in Dranichnikov (footnotes omitted):

[78]    The second relates to the function of the Tribunal and of the Federal Court. The Full Court correctly noted the degree of latitude that would be shown to a person such as the applicant representing himself without legal assistance. It recognised that he did not have to pick the correct Convention “label” to describe his plight. The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal’s duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. A fortiori this is the function of the Federal Court in determining any application to it for judicial review of a decision of the Tribunal.

58    As the Full Court observed in AXT19 v Minister for Home Affairs [2020] FCAFC 32:

56    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

59    As to the question of whether a decision-maker has read, identified, understood and evaluated a former visa-holder’s representations (or case in the Tribunal), the established principles also include that the conclusion that the decision-maker has not engaged in an active intellectual process will not be made lightly and must be supported by clear evidence. The question of whether there has been such engagement will frequently be a matter of impression reached in light of all the circumstances of the case bearing in mind that the onus is on the applicant to demonstrate error. Whether the reasons of the decision-maker fall on the ‘wrong side of the line’ will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons. What is required is the reality of consideration by the decision-maker. On judicial review the Court must assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations made. Each case necessarily turns on its own particular facts and circumstances and the reasons must be considered by reference to those facts and construed in a practical and common-sense manner: KXXH at [46]-[50] (and the authorities there cited).

60    I do not accept the Minister’s submission to the effect that the observations of the Full Court (Mortimer, Colvin and O’Sullivan JJ) in ECE21 (at [7]-[9]) are of no application and that case is to be confined to its facts. In that case the Court explains the significance of two aspects of the decision-maker’s statutory task under s 501CA(4) that arise from the analysis in Plaintiff M1/2021 and the decision-maker’s obligation to read, identify, understand and evaluate the representations. The Court explains that it is for the decision-maker, ‘acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance’. Accordingly, a failure of the decision-maker to refer to a particular matter in its reasons may indicate that the decision-maker was not persuaded of its significance. It does not necessarily infer that the decision-maker failed to identify and understand the representations being made. That is so even if the matter was clearly articulated by the applicant or clearly arose on the materials. The Court, on judicial review, is required to determine whether the reasons demonstrate that the decision-maker has read, identified, understood and evaluated the former visa-holder’s representations. However, that is not an enquiry into the ‘degree or quality of consideration in the reasoning’, rather the enquiry is simply as to whether there has been consideration of the representations. While the task of sifting and attributing weight are matters for the decision-maker, a decision-maker is not able to perform that function properly without a proper awareness and understanding of the representations and ‘a proper appreciation of the matters that might bear upon the decision to be made’. The principal point, which is of general application, is that the decision-maker’s reasons must demonstrate that the statutory function of considering the representations (as a whole) has been performed.

Was increased suicide risk part of the applicant’s ‘representations’?

61    Accepting that the applicant had no legal representation in the proceedings before the Tribunal and, therefore, a degree of latitude should be afforded to the question of whether the relevant representation was ‘squarely raised’ either by representation, argument or evidence, there was nothing the applicant presented to the Tribunal that raised his suicide risk if removed to South Sudan as a matter of relevance for the Tribunal’s decision. The evidence or materials from which it is contended that the ‘representation’ emerges were documents provided to the Tribunal in accordance with s 500G of the Act (the G documents). The applicant made no submissions or argument to the Tribunal as to what findings of fact, if any, the Tribunal should have made on that evidence as it related to his suicide risk if returned to South Sudan.

62    In the exercise of its review function to make the ‘correct or preferrable decision’ the Tribunal was required to consider the G documents as part of that review. However, as noted earlier, although the Tribunal acts in an inquisitorial manner that ‘does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief’. Nonetheless, whether or not the applicant expressly sought to make an impediment a positive aspect of his case, the Tribunal was obliged by s 499 of the Act and para 9.2 of Direction 90 to consider the extent of any impediment the applicant may face if removed from Australia to South Sudan of which the Tribunal was aware in determining his application for review: Uelese at [64].

63    The focus of the applicant’s express representations to the Minister (and the Tribunal) was the risk posed to him from ‘others’ if he were to return to South Sudan. He also made representations to the effect that he would not receive medical treatment for his mental illness. There was before the Tribunal evidence to the effect that the applicant was at risk of committing suicide whether or not he was medicated and in Australia. There were numerous references to suicidal ideation, self-harm and at least one instance of the applicant having deliberately injured himself while in immigration detention. Having regard to the evidence and other materials before the Tribunal, an implicit consequence of his removal from Australia (and medical treatment) was an increased risk of the applicant committing suicide due to untreated mental illness. That implicit increased risk of suicide was part of an increased risk of harm, generally, consequent upon untreated mental illness. There was no direct evidence to the effect that removal of the applicant from Australia to South Sudan posed an increased risk that the applicant would commit suicide.

64    The statement Dr Butler recorded to the effect that the applicant would end his own life if returned to South Sudan, referred to at para [18] of these reasons, was made in 2018 in connection with his sentencing. That statement must be read in the context of evidence of more recent statements of suicidal ideation and self-harm while in immigration detention in Australia. Also, Dr Butler’s opinion that the applicant was at moderate risk of contemplating suicide was not directly linked to his return to South Sudan. Rather, it was linked to an absence of appropriate treatment. Dr Butler’s report supports an inference of increased risk of harm, generally, to the applicant if removed to South Sudan because his mental illness would then be untreated. Therefore, Dr Butler’s report does not provide clear and unambiguous evidence of increased suicide risk if the applicant were removed to South Sudan that is independent from the implicit increased risk arising from an absence of medical treatment.

65    The ‘Impression’ of the psychologist recorded in the IHMS clinical records on 22 December 2021, referred to at para [19] of these reasons, uses acronyms and short-hand expression which render comprehension of the record difficult. The main thrust of the report is a recommendation against certain treatment because the applicant reported that his current environment was not safe and because of the ‘feared reality’ of removal to South Sudan. In that context, the reference to an ‘increased risk of self-harm due to the un-safe environment’ appears to be a reference to his then current environment including the fear of removal. While it may be possible to read the reference to ‘un-safe environment’ to mean South Sudan that meaning is not clear. In short, the record is ambiguous and does not contain direct evidence or a representation of an increased suicide risk if the applicant is removed to South Sudan that is independent from the implicit increased risk arising from an absence of medical treatment.

66    The evidence and materials before the Tribunal were not such as to clearly identify an increased suicide risk that was independent from a general increased risk of harm resulting from a lack of medical treatment of his mental illness. Nor was an independent increased risk of suicide an unarticulated representation, claim, or argument that ‘clearly emerged’ from the materials before the Tribunal. While the Tribunal should have been aware of an implicit increased risk of suicide resulting from an absence of medical treatment, it could not have been aware of any increased suicide risk that arose independently from a lack of medical treatment.

Was there a failure to ‘consider’ the applicant’s representations or relevant material?

67    It follows that the Tribunal was obliged to consider the extent of any impediment that the applicant may face if removed from Australia to South Sudan as a result of an absence of adequate medical treatment of the applicant’s mental illness in South Sudan. Consideration of the extent of that impediment implicitly required the Tribunal to consider the extent of any potential harm that may result from an absence of medical treatment and, on the evidence and materials before the Tribunal, that implicitly included an increased suicide risk.

68    However, the obligation of the Tribunal was to consider the applicant’s representations (and other materials) as a whole: Plaintiff M1/2021 at [23]-[24]. The Tribunal was not required to treat every statement made as part of the applicant’s representations or every item of evidence or other material as a mandatory relevant consideration. As already mentioned, it was for the Tribunal to determine the significance of the representations (and other materials).

69    The applicant’s representations directed the Tribunal’s attention to removal of medical treatment as an integer of his representations or case as an impediment he would face on return to South Sudan. The potential harm resulting from untreated medical illness was not limited to suicide. The Tribunal had regard to the absence of medical facilities in South Sudan and found that impediment weighed in favour of revocation (T [79], [91]). The Tribunal identified the medical evidence (T [17]), considered the medical evidence and recorded the evidence about suicidal thoughts (T [61], [64]).

70    Although the Tribunal’s reasons are not expansive and do not deal directly with the applicant’s suicide risk (increased or otherwise) if returned to South Sudan, the manner in which it has addressed the medical evidence and made findings about it is consistent with the ‘case’ the applicant presented in the Tribunal. As already mentioned, any increased suicide risk was an implicit integer of the applicant’s representations. However, that integer was not so central or material to the applicant’s case, having regard to the evidence, materials and express representations, that the Tribunal was required to consider it separately or that it would be expected that, if it had been considered, the Tribunal would have addressed it separately and directly in its reasons. It was not a matter that was sufficiently material in that it required separate consideration notwithstanding that it was not the subject of any express representation or dealt with directly by any evidence.

71    An inference does not arise that the Tribunal failed to read, identify, understand and evaluate the applicant’s representations or any other relevant representation that clearly emerged from the evidence and materials before the Tribunal. An inference also does not arise that the Tribunal failed to identify, understand or evaluate the extent to which that untreated mental illness was an impediment that the applicant may face if returned to South Sudan. It was not necessary for the Tribunal to make reference to every item of evidence and every inference or implication of fact arising from that evidence. It was sufficient for the Tribunal to identify, understand and evaluate that untreated mental illness was an impediment to the applicant’s removal from Australia to South Sudan; that the Tribunal has done. In the circumstances, I am not prepared to infer that the Tribunal failed to consider the extent to which there is an increased risk of the applicant committing suicide if returned to South Sudan, rather than inferring that the Tribunal did not regard that implicit risk as of sufficient significance to its decision to warrant specific mention.

Conclusion

72    The application for judicial review should be dismissed with costs.

Associate:

Dated:    29 September 2023