BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs

Factual background 5 The appellant is a 49-year-old citizen of Lebanon. 6 On 16 June 2016, he arrived in Australia on a temporary visitor's visa. He subsequently applied for a protection visa in August 2016. 7 On 7 April 2017, a delegate of the Minister refused the appellant's protection visa under s 65 of the Migration Act 1958 (Cth). On 27 April 2017, the appellant sought merits review in the Tribunal, and in early February 2021, he was invited to appear at a Tribunal hearing on 25 February 2021. 8 On 29 July 2019, the appellant was involved in a motor vehicle accident. The appellant received a medical report, dated 6 December 2020, from Dr Ash Takyar, Consultant Psychiatrist, which the appellant provided to the Tribunal: see [15] and [16] below. 9 On 15 April 2021, the Tribunal affirmed the delegate's decision to refuse the appellant's protection visa because it found he was not a person in respect of whom Australia had protection obligations: Tribunal reasons at [69]-[70]. It made this finding on the basis the appellant did not have a well-founded fear of persecution for a relevant reason, nor was there a real risk that he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Lebanon: Tribunal reasons at [66]-[67]. 10 On 7 February 2022, the Federal Circuit and Family Court refused the appellant's application for judicial review. It is that decision which is the subject of this appeal. 11 The appellant plead two grounds of judicial review before the primary judge, extracted at [13] of the primary reasons, however only ground 1 of that application is relevant to the appeal before this Court. 12 His Honour summarised those aspects of the Tribunal's reasons relevant to the grounds of judicial review and his Honour's reasons. The appellant claimed to have been involved in a dispute with his wife and her family in respect of property that he owned in Lebanon but registered only in his wife's name, leading to harassment and people being sent to kill him. 13 In summary, the primary judge dismissed the application brought by the appellant having found each of the grounds of judicial review lacked merit. Relevantly, his Honour held the Tribunal did not fall into jurisdictional error in the manner it considered an aspect of the medical evidence before it, or unarticulated aspects of the appellant's case said by the appellant to have arisen squarely on the facts. Moreover, the Tribunal was not required to have rebutting evidence before making the findings it did, nor were its findings unreasonable based on the evidence before it and the reasons it gave.

Ground 1: the primary judge erred in failing to find the Tribunal fell into jurisdictional error in its conclusion at [48] as to the medical report and the appellant's claim in relation to his memory 14 This ground of appeal, with four particulars, corresponds to the first ground alleged in the Court below. It complains that first, the Tribunal failed to have regard to the evidence submitted by the appellant that demonstrated he had difficulties with memory disturbance and difficulties with concentration; second, the Tribunal failed to consider an aspect of the appellant's case; third, the Tribunal made findings in the absence of evidence; and fourth, in making a finding contrary to the evidence, the Tribunal made an unreasonable finding. In many respects, these complaints are all species of the same argument. 15 This ground is entirely reliant on passages in the medical report of Dr Takyar, prepared on 6 December 2020, in relation to the appellant's car accident in 2019. 16 The appellant submitted that the Tribunal ignored or overlooked the following passages of the report: CURRENT PSYCHIATRIC SYMPTOMS … His concentration was moderately disrupted, and he stated that he watches television but loses focus and he can no longer can focus on reading as well. … … He described irritability as noted above as well as lowered frustration tolerance. … MENTAL STATE EXAMINATION … He spoke at normal rate and volume through the interpreter with normal thought form, but tangential thought requiring redirection frequently and his concentration was disrupted, intermittently requiring redirection because of obliquely related answers or lack of detail. He presented with some memory disturbance on review. …

Particular A: the Tribunal failed to have regard to the medical evidence 17 The appellant submitted that the Tribunal failed to have regard to the medical evidence that made it clear that the appellant had difficulties with his memory. He relied on the Tribunal's statement at [48] that the appellant "made no claim that they affected his memory and neither is there anything in the reports that would indicate he had any memory problem". He submitted this was incorrect as the medical evidence explicitly referred to "memory disturbance". The appellant submitted that the primary judge erred at [21] in rejecting this argument. His Honour's conclusion that "[t]he Tribunal considered the issue but was not satisfied that the medical evidence was sufficient to find that the applicant's memory was so faulty that his oral evidence at the hearing was unreliable or worthless" was submitted to be in error. This was because the Tribunal did not make that finding, but simply incorrectly noted that there was no reference in any of the medical material to ''memory problems". It would be unusual for the Tribunal to have said nothing about the reference to memory disturbance in the report had the Tribunal been aware of it given the Tribunal's thought process was otherwise well set out. The appellant submitted the Tribunal did not even get to the point where it considered whether the reference to memory problems in the medical material was enough to persuade it that the appellant had a difficulty participating in the hearing. 18 I do not accept that submission. 19 It is first appropriate to recall that a Tribunal's reasons should be read fairly, and as a whole. The Tribunal's reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38]. 20 As referred to above at [15], the appellant's submission was based entirely on the limited passages from the report of Dr Takyar. The appellant did not suggest at any time leading up to or during the Tribunal proceedings, including when the appellant was giving evidence, that he had memory difficulties or problems, and/or that they impeded his ability to participate in the proceedings. The appellant conceded this during the hearing. Moreover, that medical report, as apparent on its face, was prepared nearly three months before the hearing and for purposes unrelated to it. The passage relied on in oral submissions is under the heading Mental State Examination, and it is not referred to again. There is no reference to any issue with the appellant's memory under the Opinion heading. At its highest, the passage relied on is a statement made nearly three months before the hearing that the appellant presented on the day of the examination "with some memory disturbance". The meaning of those words was unexplained. There is no suggestion in the report that the memory disturbance adversely impacted on the reliability of the history the appellant gave to Dr Takyar. Nor is there any reference to, or any suggestion of, any ongoing memory problem that could impact the reliability of the appellant in future. Noting the report was produced in a medico-legal context, if such a problem existed, it would be expected to have been clearly expressed. I note also the opinion section of the report states that the appellant's insight and judgment are generally intact. There was no evidence, particularly in light of the appellant's failure to agitate the issue at the hearing, that there was any impairment relevant at the time of the hearing. 21 For completeness, I note that in so far as particular A also refers to a difficulty with concentration, that aspect was not developed during submissions. It does not form part of any other particular of this ground. Although the primary judge did not refer to concentration, no complaint is made about that and nor is it a basis on which his reasons are challenged. This reflects that the focus of the submission below, as in this Court, was on the appellant's memory disturbance. In any event, the reasoning above applies equally to that aspect of the medical report. 22 I note also that the Tribunal recorded at [10] that it asked the appellant whether the medical information in relation to the car accident was relevant to his claims. He explained he was unwell and so it prevented him travelling to Sydney, but agreed he had no problem with appearing in Canberra. The accuracy of that description was not challenged. 23 Although the appellant relies on [48] of the Tribunal's reasons, that passage must be put in context, as the first respondent submitted. At [47]-[48], the Tribunal stated: [47] In considering an applicant's account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant. [48] I have taken into account some medical reports regarding a car accident that the applicant presented prior to the hearing but lend them little weight in determining the credibility pf [sic] his claims. He made no claim that they affected his memory and neither is there anything in the reports that would indicate that he had any memory problems. 24 The primary judge concluded at [21] that: The complaint that the Tribunal did not have regard to the medical evidence has no merit. The Tribunal considered the issue but was not satisfied that the medical evidence was sufficient to find that the applicant's memory was so faulty that his oral evidence at the hearing was unreliable or worthless. "Some memory disturbance" does not equate to ongoing memory problems such that the applicant was unable to effectively participate in the hearing and so denied a fair hearing or that his oral evidence was unreliable. If that was the case, the medical evidence should have so stated. Paragraphs 47 and 48 of the Tribunal decision need to be read together. The Court does not accept that the Tribunal did not consider the issue. It simply was not prepared to accept on the basis of the evidence before it that the applicant had memory problems. 25 Shortly prior to that conclusion, the primary judge made some observations to which no issue was taken by the appellant. At [15], his Honour said that it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (Randhawa) at [451]. His Honour also noted that jurisdictional error is not established if the findings were open to the Tribunal on the evidence and materials before it and for the reasons it gave, by reference to ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [83]. At [17], the primary judge recognised that: A medical certificate should identify the medical condition that would prevent the sufferer from participating effectively in a Court hearing. There must be clear evidence that the applicant's mental state deprived him of a meaningful opportunity to participate in the hearing mandated by s 425 of the Act: (see; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [19]). 26 The appellant submitted that the Tribunal missed the reference to the appellant's memory disturbance in the report, for otherwise the conclusion in [48] regarding memory problems is inconsistent with the Tribunal having knowledge of that reference. He submitted that "as you really have to search" to find the reference to it in the material, it was overlooked. 27 It is to be recalled [48] is in that part of the Tribunal's reasons addressing matters relevant to assessing the evidence and the appellant's claims. In that context, The Tribunal reasons addressed the appellant's memory in the same paragraph, and immediately after, referring to taking into account the medical reports. The better inference is that the Tribunal referred to the topic of memory in that paragraph because it was aware of the reference to memory in the medical report. Otherwise, there appears to be no basis for the Tribunal referring to the topic at that juncture, it not having been raised by the appellant or otherwise being in issue, as noted at [20] and [22] above. When pressed during the hearing in this Court, the appellant offered no other explanation for the Tribunal having addressed his memory at this point in its reasons. 28 Properly read, there is no inconsistency in the Tribunal's reasons. As the primary judge concluded, the Tribunal had taken into account the content of the medical reports, but afforded them little weight. That was a matter for the Tribunal. It was not required to accept the material or give it the weight or significance the appellant now seeks to attribute to it. 29 As described above at [20], the appellant did not raise at the hearing that he had any memory problem. He made no claim before the Tribunal that his memory was adversely affected because of some memory problem, either before or at the hearing. The appellant accepted that in submissions, and the beginning of the impugned sentence, "[h]e made no claim that they affected his memory", is not criticised. In context, the better reading of the impugned passage is that the reference to there being nothing in the reports that would indicate that he had any memory problems, is referring to any memory problem that might impact on his evidence. Given the content of the medical report as described above at [20], that reading is open. There is no inconsistency. 30 The appellant has not established his submission that the Tribunal "ignored" or overlooked relevant material.

Particular B: the Tribunal failed to consider an aspect of the appellant's case 31 This submission overlaps with those advanced in support of particular A. The appellant submitted that in failing to have regard to the medical evidence, the Tribunal failed to consider an aspect of his case. He submitted that at least an unarticulated claim was squarely raised on the material that suggested the appellant had memory problems. By the very submission of the medical material the relevance of his medical problems, particularly his difficulties with memory, was squarely raised, citing DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56; (2018) 259 FCR 460 at [7]. He further submitted that when the appellant wrote to the Tribunal post hearing stating that he was very sick and reminding the Tribunal of the evidence he had provided (when seeking a further extension and a list of questions in writing), the appellant was articulating a submission that his medical issues were relevant to the assessment of his claim. I note for completeness, the appellant did not rely on the terms of his further correspondence to the Tribunal, dated 7 March 2023. The primary judge did not refer to that correspondence, and nor is it a basis upon which his Honour's reasoning was challenged in this Court. Again, that is consistent with the manner in which the case was presented. In any event, that correspondence does not alter the conclusion reached below. 32 The primary judge rejected this submission at [22]: Ground 1b is a variation of Ground 1a. It complains that the Tribunal failed to consider an unarticulated aspect of the applicant's case as regards his memory issues. The applicant relies upon DFC16 v Minister for Immigration and Border Protection (2018) 259 FCR 460 ("DFC") to the effect that unarticulated claims may nonetheless form part of the applicant's case where they arise on the evidence. Such a claim must be raised 'squarely' on the evidence. However such a claim "will not depend upon for its exposure on constructive or creative activity by the Tribunal": (see; DFC at [463]). At no point in the hearing, noting that a copy of the transcript was tendered to the Court, did the applicant raise even obliquely that his memory was faulty and he was unable to recall past events clearly. Further, the medical report does not explain inconsistencies in the applicant's claims and evidence, including those in the statement in support of the protection visa made before the car accident. The Court does not accept the applicant's submission that in seeking further time for submitting a post hearing submission stating he was 'very sick' that this again raised the issue 'squarely' of memory issues. If the applicant was so ill that he was unable to respond to the invitation to provide further information then he should have presented medical evidence to support that fact. The claim that the applicant was 'very ill' was not expanded upon in any way and was entirely vague. Ground 1b has no merit. 33 The appellant did not address, or challenge the reasoning in [22] dismissing this ground below, apart from submitting, consistent with the particular A, that the Tribunal failed to have regard to the medical evidence in relation to his memory. The submission on this ground overlaps with particular A, and for the reasons there given, it has not been established that the Tribunal did not consider the material complained of. 34 In any event, as referred to above at [26], the appellant submitted that, in effect, the reference to memory disturbance in the medical report could be missed, because you "really have to search for it". This is inconsistent with the submission that the claim was squarely raised. Further, given the conduct of the hearing and that the appellant did not raise any issue with his memory, there is nothing about the post-hearing correspondence with the Tribunal that ought to have been seen as articulating a submission that his medical issues, particularly any difficulties with memory, were relevant to the assessment of his claim. The purpose of the email was to request an extension of time to provide further submissions. Contrary to the appellant's submission, there is no basis to suggest that in doing so he was advancing a substantive claim that he had not articulated to date. The appellant's statement in the email that he was very sick did not say anything about him having memory problems. Nor does the nature of the appellant's request. The Tribunal's reasons reflect that he was given an opportunity to provide additional information, albeit not the full 14 days he requested. He did not file any further submission or information, and it is not suggested this was because of any memory problem. The appellant's submissions as to the relevance of the email and what can be drawn from it are not supported by its terms, considered in context. I note also that in advancing this submission the appellant, although referring to the medical evidence in general, did not suggest that in reality, his complaint is any broader than that identified in the passages above at [17] and [31]. 35 This particular is not established.

Particular C: the Tribunal made findings in the absence of evidence 36 Simply put, the appellant's submission is that the Tribunal's finding at [48], that there was no evidence of the appellant's memory problems, was a finding made in the absence of evidence. The finding was submitted to be a critical finding, in that it was a critical step in rejecting any possible explanation of some of the difficulties articulated by the Tribunal with respect to the appellant's evidence and claim. 37 The primary judge rejected this submission at [23]: Ground 1c seems to be predicated upon the assumption that the Tribunal was bound to accept that the applicant had memory problems. The Tribunal did not do so for the reasons it gave. To a large extent this ground merely expresses vehement disagreement with the conclusion of the Tribunal that it did not accept the applicant's evidence and found he was not a credible witness. The Tribunal is not required to have rebutting evidence before holding that a particular assertion is not made out: (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348]). Ground 1c has no merit. 38 The appellant did not address this conclusion. 39 The Tribunal's finding at [48] in the context of [47], is discussed at [23]-[26] above. 40 Given that understanding, it has not been established that there was a finding made in the absence of evidence. The Tribunal considered the medical evidence but gave it little weight, as it was entitled to do. The appellant did not grapple with the limitations of the material on which he relies: see for example, [20] above. This is particularly so, given the appellant did not raise memory issues with the Tribunal during the hearing, as addressed at [20] and [22] above.. 41 As the primary judge observed at [15], the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa at [451]. It is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [24], citing Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214 at [76]. 42 This particular is not established.

Particular D: in making a finding contrary to the evidence, the Tribunal made an unreasonable finding 43 The appellant submitted that the Tribunal's finding at [48] that there was no evidence of the appellant's memory problems, was a finding made contrary to the evidence before it. Moreover, he submitted there could be no rational or logical way to reconcile that finding with the evidence, making reference to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611. 44 The primary judge rejected this submission at [24]: Ground 1d complains that the Tribunal's findings were unreasonable. Unreasonableness is where a decision maker has come to a conclusion so unreasonable that no reasonable decision maker could have come to it: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [28]). The test for unreasonableness is 'stringent' and will only arise in rare cases. The decision to find the applicant did not have memory problems such that it would explain the significant inconsistencies in his evidence is one that was open to the Tribunal based on the evidence before it and for the reasons it gave. Ground 1d has no merit. 45 The appellant did not address this conclusion. 46 This particular is rearguing the points made above. For the reasons already given, the proposition is not established.

Ground 2: the primary judge erred in finding that any error was not material 47 The appellant challenges the primary judge's conclusion at [31]. The appellant referred to MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 (MZAPC), and submitted that had the Tribunal not made the errors alleged in this appeal and had it properly considered the evidence of the memory problems arising from the medical material before it, there was a realistic possibility that a different decision could have been made. The Tribunal could have reasoned that the medical difficulties referrable to memory may have explained the difficulties that arose in the appellant's claims. In oral submissions in reply, the appellant submitted for the first time that two sentences in [41] of the Tribunal's reasons were an example where the question of a memory disturbance may have been relevant to the assessment of his claim. It was said to be relevant if ground 1 is made out, to the question of materiality of the error. 48 The impugned passage at [31], in context, is as follows: [30] The first respondent makes a final submission that the applicant's claims were replete with inconsistencies and implausibility's [sic] such that even if the Court is wrong in finding that grounds 1 and 2 have no merit that any errors (which are not admitted) could have made a difference to the outcome. [31] Any error as to his memory was not sufficient to overcome the other inherent implausibility's and inconsistencies in the applicant's claims and was thus not material: (see; BJC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 205 at [21]). The Court accepts this submission. 49 As the primary judge did not find any error had been established, his conclusion on materiality was only reached on the basis that even if an error had been established, it would not have been material and therefore jurisdictional error would not have been established. It would have made no difference to the result. Therefore, this ground strictly only arises for consideration if ground 1 has been established before this Court. In that event, the appellant must establish error in the primary judge's conclusion on materiality, as it otherwise renders any primary error established non-jurisdictional. Despite the fact ground 1 has not been established, I nonetheless address this ground. 50 In order for an error to be jurisdictional, it must be material, in the sense that compliance could realistically have resulted in the making of a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (SZMTA); MZAPC at [2]-[4]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 (Nathanson) at [32]. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact, of which, in an application for judicial review on the ground of jurisdictional error, the appellant bears the onus of proof: MZAPC at [2]-[4]; SZMTA at [46]; Nathanson at [32]. The onus of proving, by admissible evidence on the balance of probabilities, facts necessary to satisfy the Court that the decision could realistically have been different had the breach not occurred lies with the appellant: MZAPC at [39], [60]; Nathanson at [32]. 51 The first respondent points to the reasons of the Tribunal, considered as a whole, to submit that there were multiple inconsistencies and implausible elements in the appellant's recounting of his claims, as relayed over time, which led the Tribunal to conclude that he was not a credible witness. The first respondent identified some of these findings. For example, the appel1ant's apparent inability to produce specific documents that should have been available to him if his story with respect to his divorce and the property ownership was accurate (such as divorce documentation or property documents from the Lebanese Government): for example, Tribunal reasons at [51], [54]; the constant shifting nature of the of his story, not merely with respect to details, but with respect to substantial elements: see for example, at [52]-[61]; and the implausible nature of many of the claims: see for example at [55] and [61]-[62]. It was submitted that none of these findings required the Tribunal to rely upon its findings at [48] with respect to the appellant's memory. 52 The appellant sought to establish this ground by submitting there is a realistic possibility the decision could have been different, and therefore jurisdictional error is established. Given the limited nature of the material that is said not to have been considered, as explained above at [20], in the circumstances of this case, the appellant has not established that there is a realistic possibility the decision could have been different. 53 As referred to above at [20] and [22], the appellant himself did not suggest when giving evidence that there was an issue with his memory. The appellant does not rely on the transcript of the proceedings in the Tribunal in support of his case. It can be assumed that he answered the questions asked. That does not suggest he had any memory problem. As noted above at [20], the appellant conceded during the appeal he did not claim before the Tribunal that he had any memory problem, or that his memory impeded his involvement in the proceedings, and that the transcript did not assist his claims in this regard: and see primary judgment at [22], recited above. Accordingly, even if the appellant established a failure by the Tribunal to consider an aspect of the medical material, there is no evidence that the material would have changed the Tribunal's consideration of his claim. 54 Further, properly read, the Tribunal reasons make a number of findings as to credibility that could not in any way be attributed to purported problems with memory. The reasoning is detailed and clear: see for example, Tribunal reasons at [50]-[65]. The appellant did not provide documentation sought by the Tribunal and failed to provide supporting evidence when such evidence would be expected, for example, as to the claimed housing dispute and his divorce. He gave significantly inconsistent answers on that topic (before the date of the car accident). He gave inconsistent versions of events that formed the basis of his claims and explanations for his actions, which were not accepted for reason, inter alia, of being implausible. The basis of his claim advanced in the Tribunal (and before the Delegate) was not mentioned in his protection visa application. 55 The appellant submitted that "[t]he Tribunal could have reasoned that the medical difficulties referrable to memory may [have] offered an explanation for the difficulties that may have arisen from the appellant's claims" (emphasis in the original). As referred to above at [47], the appellant, for the first time in reply, relied on the two sentences in [41] of the Tribunal's reasons. Those sentences record that he said he did not remember information given to him in an Immigration interview some years ago, in relation to the fact that a complaint can be made against a migration agent (when he was asked about an apparent inconsistency in his evidence). This is the only example relied on by the appellant. The Tribunal said that questioning occurred in the context of putting to the appellant matters going to his credibility. In that context, it is notable the appellant did not suggest that his inability to remember being given the information was the result of any medical issue. In light of the Tribunal's factual basis for its findings as to the appellant's claims more generally, it does not establish that there is a realistic possibility the decision could have been different. 56 The appellant has not established any error in the primary judge's conclusions. 57 In any event, even if the appellant had established the errors alleged, for the reasons above, he has not discharged his onus of establishing that it would be material. As a consequence, even if there was an error, the appellant has not established any jurisdictional error.

Conclusion 58 Accordingly, the appeal is dismissed, with costs. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.