Ground 1
34 The appellant's submissions in relation to ground 1 may be summarised as follows:
(a) The appellant suffers from schizophrenia and psychosis. This condition, if left unmedicated, leads him to voice paranoid delusions. It also causes him to engage in erratic behaviour endangering others.
(b) As recorded at [62] of the Decision Record, the appellant told the Tribunal that "there was discrimination from the members of the public and the police: they did not recognise about (sic) mental health". The Tribunal also noted at [62] that the appellant "referred to the fact that in Australia he had been taken to court four times but he had not been convicted because they had observed his mental illness. He said that if he were in Kenya he would be in prison right now".
(c) In response to the statement that, if the appellant were in Kenya he would be in prison, the Tribunal stated, at [83], that "this is because … the authorities in Kenya do not recognise mental illness: it is not because they discriminate against people who have mental illness". The Tribunal considered, on the basis of the evidence referred to by the appellant's representatives, "that people in Kenya would not see his behaviour as the result or a symptom of mental illness but rather … as criminal behaviour". On this basis, the Tribunal did not accept that there was a real chance that the appellant would be "singled out or treated differently from other people who behave in the way in which he may behave" for reasons of his membership of the group or for any one of the other reasons referred to in s 5J(1)(a).
(d) In essence, therefore, the Tribunal considered that the appellant would not be subject to relevant harm because the criminal law of Kenya would punish him equally to another person who engaged in the same conduct.
(e) This analysis fails to have regard to the fact that a law of general application may differentially impact someone because of a protected characteristic and that, by so doing, the punishment meted out to that person under that law can amount to persecution for reasons of a ground referred to in s 5J(1)(a): see Applicant A at 258; Applicant VEAZ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1033 at [26]; VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602 (VSAI) at [20]; Erduran v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 150 at [28]. It was necessary to consider whether the Kenyan criminal law would be implemented or enforced in a discriminatory manner: Applicant S at [42]-[43]. The content of the concept of discrimination as it relates to persecution was explained by Gaudron J in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 (Ibrahim) at [29]. The Tribunal erred by not considering whether the treatment would be discriminatory in accordance with those principles.
(f) A criminal law that criminalises and leads to punishment for erratic acts is a law of general application, but it differentially impacts those whose severe mental illness causes them to act erratically. In this case, the Tribunal failed to ask the centrally important question, namely is a Kenyan law that treats the behaviour of a mentally ill person as "criminal behaviour" a law that is appropriate and adapted to achieving some legitimate object of the country concerned?
(g) The primary judge's reasons for dismissing this ground ignored both the evidence before, and the reasons of, the Tribunal. The primary judge's finding at [27] of the Reasons is difficult to square with the express claims of the appellant that on return to Kenya he may be "punished or put in jail because [he] cannot control [his behaviour] and people will not understand that this is because of [his] mental illness" (AB 54); see also the Decision Record at [83].
35 In response to these submissions, the Minister submits that: the appellant mischaracterises the nature of the Tribunal's findings at [83] and [84]; the Tribunal concluded that the appellant would not be subject to discriminatory treatment for reasons of his membership of the group; rather, he would only come to the potential attention of the Kenyan authorities or the community for reasons of his (potentially criminal) behaviour as an individual for the reasons it identified at [83] and [84]. The Minister submits that the Tribunal expressly rejected the proposition that the Kenyan authorities and community members would treat the appellant differently because of exhibition of symptoms of mental illness - they would perceive criminal behaviour simply as criminal behaviour. The Minister submits that the appellant seeks to conflate the (many different) causative reasons why a person might engage in general criminal behaviour with the actual objects of the criminal law.
36 The Minister submits that: there was no express or implied claim before the Tribunal that mentally ill persons were subject to particular laws or policies that were discriminatory, in the sense of persecutory, in terms or effect, which would have required the Tribunal to make a finding as to whether such a law or policy was a law of general application (see Applicant S at [41]-[49]); the appellant's submission that such a submission was made is not established; no reference is made in the material cited to a law that operates with the discriminatory effect for which the appellant contends; it is for the visa applicant to present such evidence and to advance such submissions as are considered relevant to the claims being made out (SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 at [53]).
37 The Minister submits that it was therefore not necessary for the Tribunal to engage in the inquiry as to whether the (unidentified) Kenyan law or policy was appropriate to some legitimate object of Kenya; that inquiry is only relevant once it is concluded that the law or policy in question is found positively to result in discriminatory treatment against a visa claimant for reasons of a Convention attribute (Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 (WZAPN) at [72]-[77]; ADS15 v Minister for Immigration and Border Protection [2018] FCA 233 at [35]); having found to the contrary at [83]-[84], the Tribunal was not required to ask the question posed by the appellant in his submissions.
38 In my view, in the present case, the appellant did make a claim for protection on the basis of the implementation or enforcement of the criminal laws of Kenya. In particular, I note the following matters:
In the appellant's statement accompanying his visa application, he stated (AB 54): "If I cannot get the treatment and support I need in Kenya, then I do not know what I will do or what consequences I will face. I may be punished or put in jail because I cannot control my [behaviour] and people will not understand that this is because of my mental illness".
As noted at [32] of the Decision Record, in a submission following the hearing before the delegate, the appellant's representatives submitted that if the appellant "were not able to access appropriate treatment for his mental health issues he would face a real chance of serious and significant harm from the community and the authorities due to his resulting behaviour". The Tribunal noted that the representatives "produced evidence that on 16 September 2016 criminal charges against [the appellant] had been adjourned without a conviction being recorded on the basis of an undertaking to be of good behaviour for a year and that he comply with any conditions and directions under the Mental Health Act."
As recorded at [62] of the Decision Record, at the hearing before the Tribunal the appellant said that "there was discrimination from the members of the public and the police and the authorities: they did not recognise about mental health". The Tribunal noted that the appellant "referred to the fact that in Australia he had been taken to court four times but he had not been convicted because they had observed his mental illness. He said that if he were in Kenya he would be in prison right now."
As recorded in [69] of the Decision Record, in a post-hearing submission, the appellant's representatives submitted that "if [the appellant] could not receive adequate medical treatment he would face harm from the authorities and members of the community because of the consequences of his symptoms and related behaviour."
As recorded in [71] of the Decision Record, in the post-hearing submission the appellant's representatives submitted that "any form of treatment or punishment which [the appellant] might face from the authorities because of his behaviour needed to be considered in light of his personal circumstances and should not be regarded simply as the enforcement of a law of general application."
I note that the above list of submissions and statements is not exhaustive; similar or related submissions or statements were made by the appellant, or his representatives, on other occasions.
39 I consider these submissions and statements to squarely raise a claim based on the implementation or enforcement of the general criminal law of Kenya. The substance of these submissions and statements was that these laws would operate in a discriminatory way with respect to a person with a mental illness (by not recognising or having regard to the impact of mental illness on their behaviour).
40 The High Court has given consideration to the role that laws of general application may play in the context of refugee claims. In Applicant S, Gleeson CJ, Gummow and Kirby JJ referred at [39]-[40] to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323 (Israelian). In that case, in concluding that the applicant was not a member of a particular social group comprised of either or both deserters and draft evaders, McHugh, Gummow and Hayne JJ found that the Tribunal had not committed an error of law and concluded (at [97]) "that there would not be persecution of Mr Israelian if he returned to his country of nationality, only the possible application of a law of general application". In Applicant S, Gleeson CJ, Gummow and Kirby JJ noted that the Minister submitted that the facts also revealed "a law of general application" and, therefore, that the conclusion in Israelian must follow. Their Honours rejected that proposition at [41]. Their Honours went on to state (at [42]-[45]):
42 Further, what was said in Israelian does not establish a rule that the implementation of laws of general application can never amount to persecution. It could scarcely be so given the history of the Nuremberg Laws against the Jews enacted by Nazi Germany which preceded, and help to explain, the purposes of the Refugees Convention. Rather, the Court majority determined that, on the facts of that case, it had been open to the Tribunal to conclude that the implementation by Armenia of its laws of general application was not capable of resulting in discriminatory treatment. A law of general application is capable of being implemented or enforced in a discriminatory manner.
43 The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is "appropriate and adapted to achieving some legitimate object of the country [concerned]". These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen [Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293]. As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court's decision in Israelian. Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective.
44 In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.
45 The joint judgment in Chen expanded on these criteria:
"Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective. (Emphasis added.)"
That ultimate consideration points to the answer in the present case.
(Footnotes omitted; bold emphasis added.)
41 In the above passage, Gleeson CJ, Gummow and Kirby JJ clearly stated that a law of general application is capable of being implemented or enforced in a discriminatory manner, and that the criteria for determining whether a law or policy that results in discriminatory treatment actually amounts to persecution are those articulated by McHugh J in Applicant A.
42 To similar effect, in VSAI, in the context of a claim based on a risk of being imprisoned for draft evasion pursuant to a law of general application, Crennan J (as a member of this Court) said at [20]:
It is well recognised that a draft evader exposed to laws of general application may nevertheless [be] considered to be a refugee if it can be shown that such a person would suffer disproportionately severe punishment or discriminatory application of the laws of general application for the offence, or if the draft evasion were motivated by or related to a Convention reason, namely religious conviction, political opinion (including conscientious objection) or membership of a particular social group: Applicant S v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 2 ("Applicant S"); see also Mehenni v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 789; 164 ALR 192 at [169] per Lehane J.; Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548 at [63] and [65] per Merkel J.; Erduran v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 814 at [9] per Gray J.; Applicant VEAZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1033 at [26] per Gray J.
(Emphasis added.)
43 The concept of discrimination in the context of a claim for protection under the Refugees Convention was explained by Gaudron J in Ibrahim at [24]-[33]. Her Honour stated at [29]:
It is convenient now to turn to the concept of discrimination which, as has been pointed out, is an essential feature of persecution for the purposes of the Convention. Discrimination is not simply the different treatment of individuals or of classes of individuals. There are two distinct aspects to discrimination. The first, which needs no elaboration, is the different treatment of people who are not relevantly different; the second is the treatment of people who are relevantly different in a manner that is not appropriate and adapted to that difference. Treatment of the latter kind is usually, albeit inaccurately, referred to as indirect discrimination. And it is usually identified on the basis of its different impact on different groups within the population.
(Footnotes omitted.)
The judgment of Gaudron J in Ibrahim at [24] was cited by Keane, Nettle and Edelman JJ in BRF038 v Republic of Nauru (2017) 349 ALR 67 at [44] (fn 35). Although Gaudron J was in dissent, the above passage reflects principles discussed in other cases: see, eg, Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478 per Gaudron and McHugh JJ.
44 It is apparent from the foregoing authorities that in certain circumstances the implementation or enforcement of a law of general application may amount to persecution within the meaning of s 5J(1)(a). Where this is alleged, a preliminary question is whether the law results in discriminatory treatment. That may be the case where the law treats people who are relevantly different in a manner that is not appropriate and adapted to that difference: Ibrahim at [29]. If there is discriminatory treatment, the next stage in the inquiry is to consider whether the treatment amounts to persecution. The relevant test is whether the treatment is appropriate and adapted to achieving some legitimate object of the country concerned: Applicant S at [43], citing Applicant A at 258.
45 In the present case, the Tribunal did not approach the matter in the way required by the authorities discussed above. The critical paragraphs of the Tribunal's decision are [83]-[84]. Two aspects of the Tribunal's reasoning in these paragraphs should be noted. First, at [83] the Tribunal reasoned that any treatment the appellant would suffer from the authorities would be due to the fact that the authorities did not recognise mental illness and would not, therefore, be because they discriminate against people with mental illness. This reasoning reveals that the Tribunal was proceeding on an erroneous understanding that discriminatory treatment only encompasses differential treatment, and does not encompass a failure to treat people who are relevantly different in a manner that is appropriate and adapted to that difference. Secondly, in paragraphs [83]-[84] the Tribunal focussed almost exclusively on the question of whether the feared treatment by the public, the police and the authorities would be "for reasons of" a Convention ground, namely membership of the particular social group of mentally ill persons in Kenya. The Tribunal reasoned that because the authorities in Kenya do not recognise mental illness, the treatment would not be "for reasons of" a ground referred to in s 5J(1)(a) of the Migration Act. (I note that s 5J(1)(a) uses the same language - "for reasons of" - and refers to the same grounds as the Refugees Convention.)
46 By reasoning in these two ways, the Tribunal did not give proper consideration to whether the Kenyan criminal laws would be implemented or enforced in a discriminatory manner with respect to people with a mental illness. As the passage from Applicant S makes clear, the fact that a law is of general application does not answer the question of whether or not it is discriminatory. In the case of a criminal law of general application, the law may be implemented or enforced in a discriminatory way (in the sense explained by Gaudron J in Ibrahim) if it does not recognise and therefore does not take account of a relevant difference, such as mental illness. Here, rather than asking whether the Kenyan criminal laws would be implemented or enforced in a discriminatory way, the Tribunal in effect assumed that because mental illness was not recognised, the law could not be discriminatory. Thus, the Tribunal did not properly analyse or consider whether or not the feared treatment would constitute discrimination. As indicated in [44] above, this was an essential and preliminary step in determining whether the treatment would constitute persecution for reasons of a ground referred to in s 5J(1)(a).
47 The primary judge relied, and the Minister in his submissions relies, on WZAPN at [72]-[77]. However, I do not consider anything in that passage (of the reasons of French CJ, Kiefel, Bell and Keane JJ) to be inconsistent with the propositions set out above. In WZAPN, French CJ, Kiefel, Bell and Keane JJ set out a passage from the judgment of Gleeson CJ, Gummow and Kirby JJ in Applicant S (namely, part of [43]) and then stated at [77] that the passage from Applicant S made clear that an inquiry into whether a law or policy is "appropriate" to some legitimate object of the country concerned is relevant only once it has been concluded that the law or policy results in discriminatory treatment for a reason specified by the Convention. The thrust of the Minister's submissions in relation to WZAPN is that it was unnecessary for the Tribunal to inquire into whether Kenyan law was appropriate and adapted to achieving a legitimate object because it had concluded the law was not discriminatory. However, the passage in WZAPN at [77] proceeds on the basis that the question of discriminatory treatment has been analysed properly. In the present case, for the reasons discussed in [45]-[46] above, the Tribunal did not properly analyse or consider whether or not the feared treatment would constitute discrimination. Accordingly, I do not consider WZAPN to assist the Minister's case or to detract from the analysis set out in [45]-[46] above.
48 For these reasons, in my view, the Tribunal asked itself the wrong question, or failed to ask itself the correct question, or adopted an incorrect test, and thus constructively failed to exercise its jurisdiction. The primary judge erred in not so holding. Accordingly, ground 1 is made out.
49 In light of this conclusion, it is not strictly necessary to consider the appellant's other grounds. Nevertheless, I will make some observations about these grounds.