BNZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-06-06|Before: Allsop CJ, Moshinksy JJ, Snaden J

The appeal be dismissed.
The appellant pay the first respondent's costs of the appeal, to be assessed in default of agreement in accordance with the court's Costs Practice Note (GPN-COSTS). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SNADEN J: 1 The appellant is Sri Lankan. He arrived in Australia in November 2012 as what is now known under the Migration Act 1958 (Cth) ("the Act") as an "unauthorised maritime arrival". Four years later, he applied for a safe haven enterprise (subclass 790) visa. That application (the "Visa Application") was accompanied by a statutory declaration, in which the appellant outlined his claims to protection under s 36 of the Act. 2 Those claims have not succeeded. On 9 May 2017, a delegate of the first respondent (the "Minister") rejected the appellant's Visa Application. That rejection was affirmed by the second respondent (the "IAA"); but that affirmation was eventually set aside following a successful appeal to this court: AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2019) 274 FCR 82 (Allsop CJ, Jagot and Moshinksy JJ). The Visa Application was remitted to the IAA for determination according to law. 3 On 18 February 2020, the appellant attended a video-link interview with a member of the second respondent (the "IAA Interview"). On 9 March 2020, the same member decided to affirm the initial decision of the Minister's delegate to reject the appellant's Visa Application (that affirmation is referred to hereafter as the "IAA Decision"). The appellant then applied to what was, at the time, the Federal Circuit Court of Australia (the "FCCA"; now the Federal Circuit and Family Court of Australia (Division 2)) for judicial review of the IAA Decision. That application (the "Judicial Review Application") also failed: BNZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 370 (the "FCCA Judgment"; Judge Blake). 4 By a notice of appeal dated 24 March 2021, the appellant appeals from the FCCA Judgment. For the reasons that follow, that appeal will be dismissed with the usual order as to costs.

Background 5 It is unnecessary to rehearse the bases upon which the appellant claimed to satisfy the criteria upon which his Visa Application rested. It suffices to note that they focused upon a series of events to which the appellant claimed to have been subjected prior to his departure from Sri Lanka. 6 The IAA did not accept that the appellant satisfied the criteria for the granting of a protection visa. In large part, it was led so to conclude because it did not believe much of the factual narrative upon which his Visa Application was premised. That, in turn, reflected what the IAA perceived to be unconvincing and inconsistent aspects of the evidence that the appellant had advanced in support of his cause. 7 It is to those inconsistencies that attention must presently turn, at least to a degree. Not long after his arrival in Australia, the appellant attended an "entry interview" with a representative of what was then the Commonwealth Department of Immigration and Citizenship. There, he explained why it was that he had left Sri Lanka. Upon filing his Visa Application, he attended a further interview with a representative of what, by then, had come to be known as the Department of Immigration and Border Protection, at which he advanced similar contentions. He was given a third opportunity in that regard by means of the IAA Interview. Additionally, the appellant (via the agency of his advisers) sought to support his Visa Application with a series of written submissions and documents. 8 It is not presently controversial that the accounts that the appellant gave of the things that had happened to him prior to his departure from Sri Lanka (and on the strength of which his Visa Application substantially turned) were not consistently recounted, as the IAA concluded. For that reason, particulars of those events need not here be recited. Instead, what is presently controversial is whether it was open to the IAA to determine, as it did, that the appellant's narrative should be rejected at least partly (if not significantly) because of those inconsistent accounts. 9 Before the IAA, the appellant maintained that he laboured under poor mental health, which affected his memory and cognitive abilities. He relied upon two reports from a social worker, who was apparently of the view that he exhibited "impaired cognitive ability" and symptoms consistent with post-traumatic stress disorder. When asked whether he had any medical evidence to support those suggestions, the appellant's representative supplied to the IAA two documents: an International Health and Medical Services report (the "IHMS Summary"), which summarised some physical and mental health diagnoses that he had received since his arrival into Australia; and a letter dated 17 January 2018 from a psychiatrist (the "Psychiatrist's Letter"). The IHMS Summary and the Psychiatrist's Letter both recorded that the appellant had been diagnosed with major depressive disorder and post-traumatic stress disorder. 10 It is prudent to make some, albeit minimal, reference to the content of that material. The IHMS Summary purported to record some "Health Issue[s]" with which the appellant had been diagnosed and the measures that had been, or were being, employed to address them. Amongst other things, it recorded that the appellant suffered from intrusive nightmares, anxiety, poor sleep, an inclination toward self-harm and thoughts of suicide. Similarly, the Psychiatrist's Letter recorded that he suffered from or was at risk of "…suicidal ideation [both] in the context of hearing news of his visa rejection [and] in the setting of future psychosocial stressors". 11 The IAA considered that material and made reference to it in the written reasons that were published in support of the IAA Decision. After recording the central thrust of what the appellant's social worker had opined, and of what the IHMS Summary and the Psychiatrist's Letter recorded, the IAA made the following observations: I note that persons affected by conditions like major depression and PTSD can sometimes experience difficulties with memory as a result of these conditions, and I accept that the applicant is affected by major depression, PTSD and anxiety. Nevertheless, and although the applicant has claimed to have very serious problems with his memory, and although his counsellor…is of the view that he does have such problems and also problems with cognition, it was not apparent to me from the applicant's presentation at his IAA interview, or from his presentation at his April 2017 SHEV interview and January 2013 entry interview, that he has significant problems in terms of cognition and/or memory. Significantly, such evidence as is before me from the psychiatrist who formerly treated the applicant, and from the IHMS report as to the treatment the applicant is currently receiving - from an IHMS general practitioner, psychiatrist and IHMS mental health team - gives no indication that the applicant's mental health problems, or that the effects of these or of associated episodes of insomnia and anxiety, are causing him any significant difficulties with memory or cognition. It is apparent from the IHMS report that in December 2019 (after a period of almost two years being held in immigration detention) the applicant broke a table and had to be restrained and expressed feelings of intense anger towards security officers, and of frustration, and that he threatened to commit suicide if he was not released, but there is no indication that he has been seen banging his head during the recent year, or that he has experienced problems with headaches or heart palpitations or the other matters of which the applicant has claimed… Plainly the applicant is affected by some mental health problems and plainly he has found the uncertainty of his migration status, and the matter of his being detained, and his separation from his family in Sri Lanka, very difficult as can be readily understood. But the evidence before me also suggests that the applicant has sometimes sought to exaggerate the extent of his health problems and that this is particularly the case with regard to his claims about his memory. 12 It is primarily upon those observations that the present appeal focuses.

The FCCA Judgment and the present Appeal 13 By his Judicial Review Application, the appellant maintained that, by rejecting (or substantially rejecting) the factual narrative upon which his Visa Application turned, and by doing so in part because of the inconsistent manner in which it had been recounted, the IAA Decision was a product of jurisdictional error. He submitted that the inconsistencies upon which the IAA fixed were explicable on account of his mental health, memory and cognitive problems; and that, insofar as it had rejected the existence or significance of those problems on the basis of what appeared (or did not appear) in the IHMS Summary and/or the Psychiatrist's Letter, the IAA had engaged impermissibly in illogical or irrational reasoning. 14 The learned primary judge did not accept that that was so. For reasons that will shortly emerge, it is unnecessary to trace his Honour's reasoning. Instead, it suffices to note that, by the present appeal, the appellant seeks effectively to re-litigate the submission upon which he failed in the court below. He maintains that the learned primary judge was wrong to conclude that the IAA's reasoning was not a product of illogical or irrational reasoning (and, thereby, of jurisdictional error), and that this court should correct that error by setting the IAA Decision aside (additionally to granting ancillary relief). 15 The appeal proceeds upon a single ground, namely: The primary judge erred in his Honour's construction of the Second Respondent (Authority's) reasons for decision and of the material before the Court, in failing to find that: a. the Authority misunderstood the content or purpose of the IHMS [Summary] and the [Psychiatrist's Letter]; b. as a result of its misunderstanding, the Authority constructively failed to consider those reports and/or engaged in illogical or irrational reasoning; and c. the Authority's decision was thereby affected by jurisdictional error. 16 The appellant's prospects on appeal turn upon whether or not the IAA Decision was, as he maintains, a product of jurisdictional error. If it was, then it will follow that the FCCA's conclusion to the contrary was wrong and the appeal will succeed. If it was not, then the FCCA's conclusion will have been correct and the appeal will fail. Either way, it is upon the IAA Decision that attention must focus.

Illogical or irrational reasoning 17 There was no material dispute between the parties on matters of legal principle. In order that an administrative decision might be set aside as a product of jurisdictional error comprised of illogical or irrational reasoning, the illogicality or irrationality must be plain. In Minister for Immigration v SZMDS (2010) 240 CLR 611, 649-650 [135], Crennan and Bell JJ relevantly observed: …[A] decision will not be illogical or irrational if there is room for a logical or rational person to reach the same conclusion on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. 18 Here, the appellant submits that the IAA fell into error insofar as it reasoned that its own observations of him, and of his cognitive and memory functions, should be preferred over those of his social worker because (or partly because) there was no mention of any cognitive or memory dysfunction in the IHMS Summary or the Psychiatrist's Letter. By his written submissions on appeal, the appellant contended that there was: …nothing in the content or purpose of [those documents] capable of rationally or logically supporting an assumption, or an inference, that if the symptoms recorded in the [social worker's] Reports were credible, they would also have been recorded in the [Psychiatrist's Letter] and the IHMS [Summary]. There was, correspondingly, no basis upon which to afford less weight to the [social worker's] Reports because they recorded symptoms which were not set out in the [Psychiatrist's Letter] and the IHMS [Summary] (or, alternatively, to use the [Psychiatrist's Letter] and the IHMS [Summary] to support findings which differed from the [social worker's] Reports for this reason). 19 His submission continued: The resulting error may be described in several ways. On one view, the Authority's apparent assumption or reasoning process was of itself illogical or irrational, causing it to proceed on a false or unjustified premise as to the material before it: SZLGP v MIAC (2009) 181 FCR 113 at [37]. Alternatively, that illogical or irrational assumption caused the Authority to fail to engage in the requisite active intellectual process in respect of the material before it, and hence led to a constructive failure to give real, genuine and proper consideration to that material: compare WAGO of 2002 v MIMIA (2002) 194 ALR 676; [2002] FCAFC 437 at [51] and [54]; SZVAP v MIBP (2015) 233 FCR 451 at [22]; EGH19 v MHA (No 2) [2021] FCA 903 at [81]. In other words, the Authority's unjustified assumptions (or misunderstanding) as to what the [Psychiatrist's Letter] and IHMS [Summary] could be expected to contain caused it to fail to engage with what was truly before it. 20 I do not accept the appellant's contention. 21 The IAA Decision proceeds upon an orthodox assessment of the evidence. It had, before it, three sources of information about the appellant's cognitive and memory functions. The first was the appellant himself, who complained of (as the IAA put it) "very serious problems with his memory". The second was the material supplied by the appellant's social worker (in which it was suggested that he laboured under mental health concerns that impaired his memory and cognitive functions). The third was the IAA's own assessment of the way that he presented during the IAA Interview, and of the manner in which he appeared able to (and did) advance his claims to protection. 22 It is apparent that the IAA preferred its own perception over that of the appellant and his social worker. In part, that was because nothing that was said in the IHMS Summary or in the Psychiatrist's Letter contradicted it. There was no basis for thinking - and the IAA did not proceed upon the assumption - that, if the appellant suffered from some form of cognitive or memory impairment, one or both of those documents would have said so. But it was not irrational or illogical in the relevant sense to proceed, as the IAA did, upon the basis that either or both of them might have said so had such impairment existed. That is all that occurred. With respect, the learned primary judge was correct so to decide. 23 It must be borne in mind that both of the IHMS Summary and the Psychiatrist's Letter were records that pertained (or partly pertained) to the appellant's mental health. It would hardly surprise that they would, or might, contain some reference to the symptoms in which the appellant's mental health concerns apparently manifested. Indeed, both did precisely that (see above, [10]). Neither said anything about cognitive or memory impairment. 24 There was no want of logic or reason in the IAA concluding that, because none of the medical evidence that the appellant had supplied to it made any reference to his labouring under any memory or cognition difficulties, its own observation that he didn't should be preferred over the competing beliefs of the appellant and his social worker. Reasoning in that way did not involve any misunderstanding about the nature of the IHMS Summary or the Psychiatrist's Letter. The resultant conclusion was one that the evidence ably supported. 25 That being the case, it could not be said that the IAA misunderstood or failed properly to consider (in any of the ways that the authorities contemplate) any part of what the appellant had advanced. 26 There was, then, no error of jurisdiction that infected the IAA's ultimate (and consequential) rejection of the factual narrative upon which the appellant's protection claims rested. 27 It follows that the learned primary judge was, with respect, correct to conclude that the IAA Decision was not a product of jurisdictional error as alleged. The charge of error against his Honour in this appeal is not made good and the appeal should (and will) be dismissed accordingly. There is no reason why the usual order for costs ought not to be made and it will be. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

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