BCR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 This appeal from the Federal Circuit and Family Court of Australia (Division 2) (the Court below) is brought on four grounds alleging error by the second respondent, the Immigration Assessment Authority, in its decision affirming the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to grant the appellant a protection visa. 2 The appeal must be dismissed with costs for the following reasons. 3 Ground one depends on the fact that the Secretary of the Department failed to provide the Authority with all of the material considered relevant to the review as required by s 473CB(1)(c) of the Migration Act 1958 (Cth) (Migration Act). The primary judge concluded that the provision of the omitted information to the Authority could not realistically have resulted in the Authority reaching a different decision, so the error was immaterial: BCR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 196 at [60]. 4 The most recent analogous authority in respect of this issue is Nathanson v Minister for Home Affairs [2022] HCA 26 in which the relevant principles were expressed as follows: (1) "failing to afford the appellant procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal's decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome. The appellant bore the onus of demonstrating that the denial of procedural fairness was material in this sense": [1]; (2) "the materiality of a breach requires consideration of "the basal factual question of how the decision that was in fact made was in fact made"": [32] citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 173; (2021) 90 ALR 590 at [38]; and (3) "[t]here will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding…the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome": [33]. 5 It may be accepted from the Authority's decision that the material the Authority did have, and on which the Authority relied, and the material the Authority did not have, disclosed that the appellant: (1) had schizophrenia: [5]; (2) had experienced a declining mental/cognitive state and exhibited deteriorating behaviours in Australia as a result of medication non-compliance, including physical altercations, confusion, delusions and neglect of personal hygiene: [5], [10]-[18]; and (3) lacked insight, was uncooperative, and did not accept he had mental illness: [5], [10]-[18]. 6 The material the Authority did not have also included a medical report of a psychiatrist that said: Risk factors for this [the appellant's schizophrenia] may have been developmental traumas [in Iran]…The stresses of immigration could have precipitated psychosis, or possibly he came to Australia in a disorganised state - however, I do not have sufficient information to support either hypothesis. 7 The factual premise of the appellant's principal argument is that had the Authority known about this statement in the medical report and the other material, it could have concluded that the appellant's schizophrenia had been triggered by his coming to Australia or had become much worse in Australia, with the result that the Authority could not have reasoned that the appellant had long-standing schizophrenia in Iran which had not brought the appellant to the unfavourable attention of Iranian authorities so that, if the appellant returned to Iran, his aberrant behaviour again would not bring him to the attention of Iranian authorities. 8 This factual premise overlooks that the Authority expressly contemplated that the appellant's schizophrenia in Iran might have been controlled, so the Authority could not have believed that the appellant had necessarily demonstrated the same aberrant behaviours in Iran: [22]. It also overlooks that it was not the appellant's case before the Authority that the appellant had only developed schizophrenia or obvious schizophrenia in Australia, as the appellant's representative had claimed that "despite the obvious severity of his condition his illness was left undiagnosed and untreated in Iran": [14]. The implication of this claim is that the appellant's schizophrenia was always serious and should have been but was not diagnosed in Iran, which is inconsistent with the factual premise underlying this aspect of ground one. 9 I also do not accept that the material that was before the Authority creates the impression that the appellant was unwell, whereas the material that was not before the Authority creates the impression the appellant was very unwell. 10 The appellant's representatives before the Authority had submitted that the appellant was suffering "from acute psychosis and schizophrenia, and that he had a history of refusing medication and involuntary hospitalisation" ([10]), firmly denied any history of mental illness, presented as dishevelled, was uncooperative with taking medication and "denied any psychotic phenomena" ([11]), was "very paranoid", with deteriorating mental health ([13]), had been involuntarily admitted to a psychiatric unit (14]), "clearly suffered from a very serious form of psychosis, one which would lead him to deny that he suffers from any kind of mental illness, or that he requires medication and the assistance of medical professionals" ([14]), "had become erratic and displayed odd behaviours, and had previously wandered off and become lost for two days, with no sense of his surroundings" ([15]), "suffers from acute anxiety and depression, as well an inability to maintain personal hygiene, or socialise" ([15]), and "had previously exhibited threatening behaviours and a general dislike towards authoritative figures" ([15]). 11 The Authority may have used euphemisms in its reasons about the appellant's conduct, but it clearly accepted that the appellant was very unwell. There is no other way to characterise its findings that the appellant was "diagnosed with acute schizophrenia" ([5]), did not agree with the diagnosis ([5]), was recorded as "very paranoid" ([13]), had exhibited "deteriorating mental health" ([13]), and was suffering "acute schizophrenia" ([18]). 12 It is not apparent what disclosure of the omitted material to the Authority could have added, particularly given that while the Authority at [15] and [18] described the appellant's behaviour euphemistically (as "erratic", "odd", and involving "certain behaviours"), it evidently had regard to the material the subject of the invalid certificate under s 473GB of the Migration Act disclosing the true extent of the risks which the appellant presented to himself and others, descriptions which accorded with the submissions the appellant's representatives had made about the very serious form of psychosis and complete lack of insight from which the appellant was suffering. 13 I also agree with the Minister that the Authority in the present case did not reason as the appellant posits. According to the appellant, the Authority's relevant reasoning was that: (a) the appellant had long-standing and untreated schizophrenia in Iran, (b) the appellant did not come to the adverse attention of authorities in Iran while he had long-standing untreated schizophrenia, and (c) accordingly, the appellant would not come to the attention of authorities in Iran if required to return to Iran. 14 The Authority's relevant reasoning was in fact that: (a) the appellant most likely had long-standing, untreated or controlled schizophrenia in Iran: [11], (b) following aberrant behaviours and mental deterioration, the appellant had been diagnosed with schizophrenia in Australia: [11]-[18], (c) the appellant had little or no family support in Australia: [23], (d) there is an absence of evidence of incidents involving the appellant by reason of his aberrant behaviour in Iran, and he did not become homeless or destitute in Iran despite his most likely long-standing, untreated or controlled schizophrenia: [22]-[23], (e) if he were to return to Iran, the appellant would again have family support and would not become homeless or destitute: [23], and (f) a range of mental health services are available in Iran, in both rural and urban areas with specialised medications to treat mental conditions readily available and often subsidised in both specialist mental health clinics as well as at the primary care level, and if the appellant's aberrant behaviours brought him to the attention of authorities in Iran they would recognise his mental health issues: [20] and [24]. 15 Given this process of reasoning, and assuming all matters in the appellant's favour, had the Authority concluded that the appellant's acute schizophrenia and resulting serious behavioural problems were triggered by the stressors of seeking asylum and/or being detained in Australia, that conclusion could not have rationally affected the Authority's operative conclusion that Iran has a sophisticated mental health system and any aberrant behaviours in Iran by the appellant would be recognised as resulting from the appellant's mental health issues: [24]. 16 I should record that I accept that the Authority also found that the appellant would have family support in Iran as he had done in the past which would prevent him from becoming homeless or destitute: [23], [37], [43]. Further, I acknowledge that I can conceive of a possible sequence of events in which the appellant's representatives might have claimed that the appellant's schizophrenia had been triggered or exacerbated by the appellant coming to Australia and that, given his deterioration, support from his family in Iran could no longer be assumed or might be lacking. The problem is that this is inconsistent with the claim that the appellant's representatives did make to the Authority that his schizophrenia was left undiagnosed and untreated in Iran despite its obvious severity: [14]. Nor was any argument made before the primary judge or me that there was some potentially available chain of reasoning about the family support of the appellant that could have been raised but which was not raised as a result of the alleged jurisdictional errors. It is not for me to re-formulate the arguments made for the appellant in the appeal. 17 Grounds two and three were not raised in the Court below. To raise them now requires leave. The appellant had the same legal representation below. There is no explanation for the grounds not having been raised below. To the extent part of ground 2 was raised below, but not the subject of any formal application to amend, it must be inferred that the appellant's counsel made this forensic decision for sound reasons. Further, the grounds are difficult to follow and lack obvious merit. For these reasons, I am not persuaded that leave should be granted to the appellant to raise these grounds in the appeal. 18 Both grounds relate to the fact that the Secretary provided material to the Authority subject to an admittedly invalid certificate under ss 473DC and 473GB of the Migration Act which the Authority had not disclosed to the appellant. 19 The ultimate difficulty I have is that the material covered by the invalid certificate confirmed that the appellant has complex mental health needs and that the Department was concerned that it was "only a matter of time before a serious incident" occurred involving the appellant given, amongst other things, verbal threat incidents involving the appellant, the appellant slapping another client, the appellant's apparent paranoia, the appellant's deteriorating behaviour, and his refusal to get counselling. 20 As noted, it is not apparent what disclosure of this material to the appellant's representatives could have added to their representations to the Authority (summarised above), and the Authority had specific regard to this material at [15] and [18]. As a result, I am unable to identify a rational basis on which disclosure of this material to the appellant's representative could have made any difference to what was put on the appellant's behalf. 21 In any event, the reasoning in Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 380 ALR 216 at [12] that the invalidity of a certificate means that the whole of s 473GB is inapplicable, including the powers of the Authority under ss 473GB(3)(a) and (b), excludes any possible argument that the Authority ought to have considered exercising its power under s 473GB(3)(b) to disclose the material covered by the certificate to the appellant. Even if obiter dicta, it is considered dicta of the High Court and must be applied. The observations in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [97] that the "scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review" pre-dates CED16 and is not directly on point. 22 As I have said, I can see that an entirely different potential chain of reasoning might have been available: that the appellant's schizophrenia was under control or not so obvious in Iran; that the appellant's schizophrenia was triggered or exacerbated by events in Australia; that as a result the appellant's behaviours had become much more troubling and as a result he would or might not have family support in Iran as he had previously had; and that the appellant would or might become destitute or homeless in Iran as a result and thereby be at risk of serious harm of some kind from authorities - but this chain of reasoning was not proposed by the appellant's representatives at any time, was not adopted by the Authority, was not the subject of submissions before the primary judge, and was not the subject of submissions before me. I do not consider that the available approach to the issue of materiality, involving the undemanding standard of reasonable conjecture, enables this kind of speculation in circumstances where, as noted: (a) part of the chain of reasoning (the appellant's schizophrenia was under control or not so obvious in Iran) is inconsistent with the claims that were in fact made on the appellant's behalf, and (b) nothing was put to the primary judge or to me relating to the issue of support from the appellant's family if he had to return to Iran. 23 I also do not accept the appellant's submissions about s 473DC(1). The material the subject of the certificate was not "new information" within the meaning of that section. It was information that was before the Minister's delegate when making the decision under review, as the primary judge found at [36]. Accordingly, the whole of s 473DC is inapplicable including s 473DC(3) enabling the Authority to, orally or in writing, give new information about the material the subject of the certificate. The operative provision, accordingly, is s 473DA(2) which states that nothing in Pt 7AA requires the Authority to give an applicant any material that was before the Minister when the Minister made the decision under s 65. 24 This disposes of ground two. 25 Otherwise, the contention in ground three that the invalid issue of the certificate under s 473GB(5) itself vitiates the Authority's decision as it involved "an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty…to conduct a review" (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [44]) does not explain why, apart from the matters rejected in respect of ground two, the admitted invalidity had any material effect on the Authority's decision. 26 Accordingly, ground three must also be rejected. 27 Ground four is unsustainable. It may be accepted that the Authority relied on the material it had available to make findings about Iran's mental health system, being a World Health Organization report dated 1 January 2006: [19]. It may also be accepted that this report was based on work conducted in 2004. It was not legally unreasonable for the Authority to base its findings relating to the state of mental health systems in Iran as at the date of its decision (2017) on material sourced from an assessment in 2004. If the Authority did or should have known that Iran had been subject to external sanctions and internal serious disruption since 2004 which might have affected its mental health system, this does not mean that the Authority could not reasonably rely on the 2004 material. It is not suggested that other, more up to date, material which was or might have been available to the Authority would have supported a contrary finding. The Authority was entitled to rely on the material it had available in the circumstances of this case. 28 To the extent that it was further submitted for the appellant that the Authority's conclusion at [24] that if the appellant's behaviour brought him to the attention of the authorities they would recognise that he was suffering from a mental illness was legally unreasonable, it seems to me this involves a mere disputed finding of fact. The Authority was not suggesting that Iranian police personnel had mental health training. It was positing that if the appellant's aberrant behaviour did bring him to the attention of Iranian authorities, those authorities would identify the appellant's mental health problems. The Authority did not have to identify with precision the steps by which this identification was likely to occur. 29 For these reasons, the appeal must be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.