BKG17 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The Appellant pay the First Respondent's costs in an amount as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MIDDLETON J: 1 On 26 August 2019, I made orders dismissing the appeal with costs. These are the reasons for those orders. 2 In the matter before me, the Appellant appeals from a decision of a judge of the Federal Circuit Court dated 21 February 2019 and published as BKG17 v Minister for Immigration & Anor [2019] FCCA 384. In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent (the 'Tribunal') to affirm a decision of a delegate of the First Respondent (the 'Minister') to refuse to grant the Appellant a Protection (Subclass 866) visa (the 'visa'). 3 The factual background to this matter is summarised at [6]-[21] of the primary judge's reasons. In short, the Appellant, a citizen of Pakistan has made two applications for the visa. In the first, he claimed to face a real chance of persecution if returned to Pakistan on account of his Christian faith and, among other things, his past relationship with a Muslim woman. That application was refused by the Minister on 10 May 2011, with that decision affirmed by the Refugee Review Tribunal (as it then was) on 28 February 2012. Judicial review of that affirming decision was not successful. The second application was made in reliance upon the Full Court's decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 and based on complementary protection grounds. That application, which as mentioned above was refused by the Minister and affirmed by the Tribunal, is the subject of this proceeding. 4 The Tribunal's decision (in respect of the Appellant's second application for the visa) is summarised at [22]-[38] of the primary judge's reasons. Relevantly: (1) the Tribunal received evidence from the Appellant's brother by telephone - certain inconsistencies emerged between the Appellant's evidence and that of his brother so the Tribunal invited the Appellant under s 424A of the Migration Act 1958 (Cth) to comment on the information, and the Appellant did so; (2) the Tribunal received evidence from a variety of sources about the Appellant's mental health, including a report from the Appellant's clinical psychologist Ms Wong (although this report (the 'Wong Report') was not expressly referred to in the Tribunal's reasons - a matter to which I will return) and treating psychologist Ms Bower, but nevertheless concluded, contrary to the Appellant's submissions, that his mental health condition would not prevent him from obtaining work in Pakistan if he were returned there; (3) the Tribunal accepted that the Appellant was from a Christian family who raised him in a Muslim neighbourhood, but based on country information regarding the circumstances of Christians in Pakistan, the Tribunal did not accept that the Appellant faced a real chance of significant harm as claimed; (4) the Tribunal did not accept that the Appellant had previously had a relationship with a Muslim woman as claimed, and accordingly it was not satisfied that the Appellant faced a real chance of significant harm on returning to Pakistan from 'mullahs', Muslim extremists, the Pakistani authorities or others due to his claimed relationship with a Muslim woman. 5 Before the primary judge, the Appellant contended that the Tribunal's decision was affected by an error of law and that he was denied procedural fairness. In short summary, the Appellant submitted that the Tribunal: (1) came to the wrong conclusion about the Appellant's mental health problems and in particular the Appellant's ability to obtain work and access appropriate mental health services in Pakistan; (2) misunderstood the evidence the Appellant provided regarding his relationship with the Muslim woman and acted unreasonably in considering that evidence; (3) fell into error by not referring to the Wong Report in its reasons; and (4) did not properly consider evidence given by the Appellant's brother. 6 The primary judge dismissed the Appellant's application and found that there was no basis on which to conclude the Appellant had not been afforded procedural fairness. In summary, the primary judge found that: (1) It was open to the Tribunal to conclude that the appellant would find employment in Pakistan, having regard to the information before the Tribunal, and the fact the Appellant was working in Australia, albeit on a casual basis. To the extent that the Appellant sought to argue the Tribunal did not but should have considered the availability of mental health facilities in Pakistan and the discrimination to which the Appellant, as a person suffering from ill mental health, might experience, no such claim was made, nor did any such claim reasonably arise from the material before the Tribunal, citing NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1. (2) The Tribunal's findings with respect to the Appellant's submission that the Tribunal misunderstood evidence regarding his relationship with a Muslim woman were open to it, noting inconsistencies in the Appellant's evidence, and there was nothing to suggest its assessment of the Appellant's evidence was manifestly illogical or irrational or unreasonable. The Tribunal's findings, when read in their entirety, with respect to the Appellant's evidence concerning the harm faced by him as a result of the relationship with a Muslim woman were not manifestly illogical, irrational or unreasonable. The primary judge noted that these complaints were in essence seeking impermissible merits review. (3) The Tribunal's failure to make reference to the Wong Report in its decision did not, of itself, give rise to a jurisdictional error, citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 ('NAHI') and Minister for Immigration and Citizenship v MZYHS [2011] FCA 53; (2011) 119 ALD 534. (4) The Tribunal had regard to the evidence of the Appellant's brother and the conclusions the Tribunal made on this evidence were open to it. 7 The Appellant's notice of appeal before this Court contained two grounds of appeal, which largely mirror the grounds of review raised before the primary judge. His grounds of appeal are as follows (errors in original): (1) The Tribunal and the Circuit Court failed to understand the nature of capacity Details At the tribunal hearing I provided my medical documents which indicated that I was not able to participate effectively. The Federal Circuit Court decision record paragraph 72 to 76 treats this failure of the court as a minor matter but this is a major error because it goes to the ability for me to participate effectively in legal proceeding. (2) The Tribunal and the Circuit Court failed to understand the nature and extent of my brother head injuries. Details The Tribunal and the Court did not fully consider material evidence about the nature and extent of my brother ability to recall events. The medical information says that my brother would have difficulties to recalling things. Failure by the Tribunal and the Circuit Court to understand bring into the jurisdictional error. 8 Before going any further, it is appropriate at this time to note that, in advance of the hearing of the appeal, the Appellant sought an adjournment of the scheduled hearing date (for an unspecified period of time) for medical reasons. The adjournment was sought by way of an interlocutory application and accompanying affidavit dated 9 August 2019. The Appellant claimed he was 'physically unable' to attend the hearing because of an undisclosed medical condition. He also claimed he was not able to concentrate due to medication. Exhibited to the accompanying affidavit was: (1) a medical certificate dated 1 August 2019 from Dr Jasmine Ghaemi which recorded that the Appellant 'is suffering from a medical condition' and that 'for the period from Thursday, 1 August 2019 to Saturday, 31 August 2019 inclusive [the Appellant] is unable to attend his Usual Occupation'; (2) a tax invoice dated 6 August 2019 from Dr Robert Puy for services rendered including what appears to be a standard consultation and a skin prick test for 'aeroallergens'; and (3) a pathology request form completed by Dr Puy requesting that certain tests be performed in respect of samples taken from the Appellant. 9 Upon receiving the Appellant's interlocutory application and accompanying affidavit, which I took to be a request for an adjournment, I caused for the matter to be raised with the Minister's solicitor and sought an indication as to whether the Minister opposed or consented to the adjournment sought. The Minister's solicitor indicated that the Minister opposed the adjournment on the basis that the evidence provided did not substantiate the Appellant's assertion that he would be unable to attend Court. I agreed and so no adjournment was granted. 10 At the hearing, which took place on the scheduled date and with the Appellant present, the Appellant made what I took to be a further application for an adjournment. Via an Urdu interpreter, he informed me that he was under the influence of medication which meant that he could not meaningfully participate in the hearing. The Minister maintained his opposition to any adjournment in the absence of any further evidence regarding the Appellant's medical condition or medication. No such evidence (or explanation) was proffered. I refused the adjournment and indicated that the matter would proceed. Upon this indication, and my invitation to the Appellant to make any submissions in support of his grounds of appeal, the Appellant produced a document containing what I took to be (and accepted) as written submissions presented in the form of four distinct paragraphs. The Appellant briefly elaborated on aspects of his written submissions orally. 11 I now turn to address the Appellant's two grounds of appeal and his written submissions. 12 It appears to me that the first ground of appeal complains of an alleged failure by the Tribunal and the primary judge to understand that the Appellant could not 'participate effectively' in his legal proceeding. At [18] of its reasons, the Tribunal considered and concluded that it was not satisfied that any mental health condition suffered by the Appellant prevented him from meaningfully participating in the Tribunal hearing. The primary judge had regard to this finding at [29] of her Honour's reasons, and found (at [60]) that such a finding was open to the Tribunal. I see no relevant legal error in this approach. 13 The second ground of appeal takes issue with the manner in which the Tribunal and the primary judge received and considered evidence given by the Appellant's brother. A similar complaint was made in the fourth paragraph of the Appellant's written submissions handed up at the hearing, with specific reference to claimed injuries suffered by his brother that made it difficult for his brother to recall certain events. I am not persuaded that the primary judge's findings in relation to the brother's evidence discloses appellable error. After having regard to the Appellant's oral submissions regarding the Tribunal's handling of the brother's evidence (at [48]), and the Appellant's written submissions that the Tribunal misunderstood the brother's evidence (at [68]), the primary judge found that the conclusions reached by the Tribunal on the evidence before it were open to it (at [77]). I see no error in this approach. Further, it cannot be denied that the Tribunal was aware of the difficulties experienced by the Appellant's brother in recalling certain events. Indeed, as is to be recalled from earlier in these reasons, the Tribunal actively sought to inquire further about these issues by way of an invitation (pursuant to s 424A) to the Appellant to comment further on the evidence given by his brother. This invitation was taken up by the Appellant who submitted a further statement from his brother which addressed some of the difficulties he said he experienced in giving evidence to the Tribunal: see [78]. 14 The first and second paragraphs of the Appellant's written submissions (as distinct from his grounds of appeal) can be dealt with together. Collectively, they complain of the Tribunal's failure to take proper consideration of the Wong Report (referred to and described at [4] above). This matter was considered by the primary judge at [72]-[76] of her Honour's reasons. In my view, the primary judge rightly concluded, in reliance on the decision in NAHI, that although the Tribunal failed to make reference to the Wong Report, this did not of itself constitute jurisdictional error. The Tribunal is not obliged to refer expressly to each item of material before it to the extent of setting out why it, for example, rejected a particular item or attributed less weight to that item as compared with another item: see NAHI at [14]. Further, the mere absence of a reference to the Wong Report does not necessarily mean that there was a failure by the Tribunal to have regard to that evidence. I am satisfied, as the primary judge was, that the Wong Report was consistent with other psychological reports submitted on behalf of the Appellant. Accordingly, no relevant legal error is made out. 15 The third paragraph of the Appellant's written submission claims that the Tribunal reached the wrong conclusion as to the availability or appropriateness of mental health services in Pakistan, and the Tribunal's conclusion as to the Appellant's ability to obtain work if he were returned there. I agree with the primary judge that the findings reached by the Tribunal in this regard were open to it. This complaint otherwise presents as an invitation for this Court to engage in impermissible merits review of the Tribunal's decision, which is beyond the ambit of this judicial review appeal. 16 For the above reasons, I am of the view that the appeal should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.