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Did the AAT's failure to consider the Appellant's mental illness advanced as a standalone basis pursuant to Section 36(2)(a) & (aa) Migration Act, 1958 (Cth) amount to jurisdictional error?

BCE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 124 (16 July 2021)

Intro:- This is an appeal from a decision of the Federal Circuit Court of Australia affirming the decision of the Administrative Appeals Tribunal in an application for judicial review. The Administrative Appeals Tribunal had earlier, affirmed the delegate's decision to refuse to grant protection visa.

Facts:-

The appellant is a citizen of the Democratic Republic of the Congo (the “DRC”). He suffers from a mental illness known as conversion disorder. That fact assumes some prominence in this appeal, as will shortly become apparent.

On 19 December 2018, the appellant came to Australia as the holder of a transit visa. Two months later he made an application for a protection visa (within the meaning given to that phrase by the Migration Act 1958 (Cth) – “the Act”).

The appellant’s protection visa application (the “Visa Application”) has since traversed a convoluted path, the precise trajectory of which need not be traced. It came before a delegate of the first respondent (“the Minister”) who, by a decision dated 23 July 2019, rejected it (the “Delegate’s Decision”).

On 30 July 2019, the appellant applied to the second respondent (the “Tribunal”) for a review of the Delegate’s Decision. That application (the “Review Application”) was heard and, by a decision dated 4 February 2020, the Tribunal affirmed the Delegate’s Decision (the “Tribunal’s Decision”).

On 28 February 2020, the appellant filed an application with the Federal Circuit Court of Australia (the “FCCA”) for judicial review of the Tribunal’s Decision. That application (the “Judicial Review Application”) was heard and, by a judgment dated 17 December 2020, the FCCA dismissed it: BCE20 v Minister for Immigration & Anor [2020] FCCA 3455 (the “FCCA Judgment”).

By a notice of appeal dated 22 December 2020, the appellant now appeals from the FCCA Judgment. He asks that the FCCA’s orders be set aside and that, in their place, this Court grant prerogative relief in the nature of certiorari and mandamus to set the Tribunal’s Decision aside and remit the Review Application back to the Tribunal for determination according to law. He also seeks an order requiring the Minister to pay his costs, both of the present appeal and of the Judicial Review Application.

In support of the Visa Application, the appellant contended that, if returned to the DRC, he would be subjected to various forms of harm sufficient to qualify him for protection. He sought protection under what are typically known as the refugee criteria (the Act, s 36(2)(a)) and the complementary protection criteria (the Act, s 36(2)(aa)). Several bases were advanced in support of those claims, only one of which – relating specifically to the appellant’s conversion disorder – is relevant for present purposes.

Before the Tribunal, it was not in dispute that the appellant suffered from conversion disorder, said to be the result of trauma from torture, and the Tribunal accepted this to be the case.

Insofar as concerned the infliction of “serious harm” for the purposes of the refugee criteria, the appellant contended that he would, because of his mental illness, be subjected in the DRC to such a degree of social isolation that he would endure significant economic hardship, and be denied access to basic services and a capacity to earn a livelihood; in each case, to a point that would “... threaten [his] capacity to subsist”.

As to the complementary protection criteria, the appellant contended that “...in DRC, mental illness is thought to be caused by witchcraft and results in shame on the entire community in which the person with the mental illness lives”. His submission (or the submission advanced on his behalf by his representatives) continued:-

"We submit that the [appellant]’s mental illness would result in him being socially isolated as any community he would seek support from would reject him out of fear of being associated with his mental illness. This social isolation, we submit, would result in the [appellant] suffering significant harm in the form of degrading treatment or punishment. This treatment would result in the, ‘feelings of fear, anguish and inferiority capable of humiliating and debasing the person and possibly breaking their physical or moral resistance’..."

The FCCA judgment and the present appeal.

The Judicial Review Application proceeded upon two grounds, only one of which remains relevant for present purposes. The appellant alleged that the Tribunal’s Decision was the product of jurisdictional error in that it was reached without consideration of his claim that, if he is returned to the DRC, he will be subjected to social isolation on account of his mental illness sufficient to qualify as “serious harm” or “significant harm” (hereafter, the “Social Isolation Claim”).

The FCCA rejected that contention. It is convenient to record the aspects of the FCCA Judgment that addressed it:-

The [appellant]’s submission to the [Tribunal] was predicated on him not being able to access adequate medical care for his mental illness and being isolated. However the [Tribunal] found that the [appellant] could access medical care such that he would not suffer significant harm. The [Tribunal’s] reasons for rejecting the [appellant]’s complementary protection claims are found at paragraphs 58 to 62 of the decision of the Tribunal. They are as follows:-
...
The [appellant] accepts that the [Tribunal’s] reasons demonstrate engagement with the [appellant]’s claim that he would not be able to access medical care in the country of his return in respect of his physical disability. However, he argues that the [Tribunal] “completely failed to deal with the integer of his claim that related to mistreatment by community members on account of mental illness”.

The [appellant]’s claim is based upon the proposition that he would face social isolation on account of his mental illness.

Issues:-

(a) was the Social Isolation Claim a separate and distinct claim which the appellant made (or, as the Minister would have it, was that claim subsumed into the issue of access to medical treatment); and

(b) if so, did the Tribunal consider the Social Isolation Claim?

Analysis:-

The Tribunal’s statutory power to determine the Review Application was conditioned upon its first considering the material matters that the appellant advanced. Any decision regarding that application that was made without first considering all of the claims that the appellant advanced would be a decision that the Tribunal lacked jurisdiction to make; and one that would, subject to materiality considerations (in the sense of the capacity of the matter to affect the ultimate decision made), be susceptible to prerogative relief. In this regard, it is well established that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26;

A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason or a basis for extending complementary protection: Dranichnikov, 394 (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319, 356 (the Court).

A decision-maker’s failure to expressly address a particular contention will not always warrant the drawing of an inference that it went unconsidered. Where, for example, the issue in question is “... irrelevant or ... is subsumed within a claim or issue of greater generality” that is addressed, such an inference might not safely be drawn: Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320, 332 (Besanko, Barker and Bromwich JJ).

There is no dispute – and, from the summary of the Tribunal’s Decision that appears above, it is plainly the case – that the Tribunal did not, in terms, address the appellant’s Social Isolation Claim in its written reasons for decision. Its failure to do so leaves open the possibility that the Court might infer that that issue did not factor in the Tribunal’s mind when it made its decision to affirm the Delegate’s Decision.

The appellant did not submit that the unavailability of adequate medical care would occasion the social isolation to which he anticipates being subjected in the DRC because of his mental illness. On the contrary, that social isolation because of his mental illness (treated or untreated) was advanced as a standalone basis upon which he claimed to satisfy the protection criteria upon which his Visa Application turned. Logically, access to adequate medical care would likely (or hopefully) ameliorate the harm that the appellant’s mental health condition might visit upon him (and, by extension, the societal reaction to it); but there is no apparent basis upon which the Tribunal might have concluded (let alone should be understood to have concluded) that access to care would suffice to address the risk of social isolation which the appellant feared. There was not, for example, any finding (much less any basis in the evidence for finding) that the care that the appellant might receive in the DRC could cure him of his conversion disorder and thus release him from the risk of ostracism that he anticipates (or otherwise lessen its impact so as to deprive it of potential classification as “serious harm” or “significant harm”). Nor was it apparent that the claimed social isolation would cease if the appellant’s mental illness was effectively treated in the DRC.

The characterisation of a claimant’s contentions must also be fair and reasonable. The appellant’s submissions were apparent enough. His claims to protection, insofar as they were founded upon his mental illness and the prospect that he would be subjected to serious or significant harm upon his return to the DRC, were put in two ways: first, those consequences were said to be in play because he would be unable to obtain adequate medical care; second, they were said to be in play because of the social stigma and resulting isolation and shame that attaches to mental illness in the DRC. The two contentions were not part and parcel of some broader submission (such that rejection of one might fairly be construed as rejection of the other). Neither claim was confined to the appellant’s capacity to access employment or to subsist in the DRC. They were discrete claims; and the Tribunal was obliged to consider them both. Respectfully, its failure to do so bespeaks jurisdictional error.

That conclusion then invites attention to whether the Tribunal’s error was material, in the sense that “compliance could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

It is not for this Court to assess whether the degree of social isolation to which the appellant adverted rises to the standard of serious or significant harm. The analysis on judicial review is limited to whether or not there is a realistic possibility that the Tribunal could have been satisfied on those tests had it properly exercised the jurisdiction vested in it.

It could not be said that the Tribunal was unable properly to accept that the social isolation to which the appellant adverted was a form of harm sufficient to satisfy the protection criteria upon which his Visa Application rested. On the contrary, had it considered that question, it is conceivable that the Tribunal might have accepted that it was. Its failure to consider it was relevantly material.

Conclusion:-

The Tribunal’s Decision is a product of jurisdictional error. With respect, the FCCA was wrong to conclude otherwise. The appeal should succeed, the Review Application should be remitted back to the Tribunal for hearing according to law, and the Minister should pay the appellant’s costs, both of this appeal and of the Judicial Review Application.

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