JGF24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1459

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Protection (subclass 866) visa (the visa). For the applicant to succeed in this Court, he must establish that the Tribunal's decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476). It is well established that this Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has found jurisdictional error in the Tribunal's decision. On that basis, the application has succeeded.

1. The applicant is a citizen of Pakistan who arrived in Australia on 28 April 2018 (Court Book (CB) 37-38).
2. On 24 May 2018, the applicant applied for the visa with the assistance of a migration agent (CB 22-63). In that application, he claimed to have left Pakistan because he was being targeted by the Taliban for his political beliefs (CB 53-54).
3. On 28 May 2018, the applicant was invited to attend a departmental interview which was later rescheduled for 6 March 2019 (CB 97-98, 111-112). The applicant attended that interview and provided further documents following the interview (CB 126-165).
4. On 14 August 2019, a delegate of the Minister refused to grant the applicant the visa (CB 171-179). The delegate accepted the applicant's claims about his employment and political engagement but did not accept that he and his family had been targeted by the Taliban because of their political involvement (CB 174). Accordingly, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act) (CB 178).
5. On 27 August 2019, the applicant applied to the Tribunal for review of the delegate's decision (CB 184-185).
6. On 21 March 2024, the applicant was invited to attend a hearing scheduled for 15 May 2024 (CB 219-221). On 15 April 2024, the applicant's representative provided a Response to Hearing Invitation (CB 261-264).
7. On 7 May 2024, the applicant's representative provided the Tribunal with a letter from the applicant's treating psychologist (the first letter), written submissions and a statutory declaration in support of his review application (CB 265-283). Relevantly, the letter from the psychologist indicated that the applicant was suffering from and receiving treatment for Post-Traumatic Stress Disorder and Major Depressive Disorder with severe anxious distress. The letter further states (CB 269):

Based on available sources (including DFAT report) there appears inadequate professional or mental health services, help and treatment available in Pakistan, and its overall standard is low. This is further compounded by significant barriers to accessing professional and mental health services including cost, cultural issues, and distance. Should [the applicant] be returned to Pakistan, it is likely that his psychological condition will significantly deteriorate and his risk of self-harm will increase.

1. The applicant's written submissions to the Tribunal also emphasised the cultural stigma around mental illness and the lack of adequate mental health services in Pakistan (CB 278). In those submissions, the applicant's representative stated:

Mental Health

[The applicant's] treating psychologist ... has diagnosed the applicant with post-traumatic stress disorder, major depression and anxiety. In the opinion of [the psychologist], [the applicant] demonstrates the tendencies of a person with such disorders, such as social withdrawal and suicidal ideation. ... A recent mental health overview of Pakistan has mentioned that:

"Pakistan has a high rate of mental disorders, a low literacy rate, a lack of awareness and a cultural stigma around mental illness. People tend to seek help from spiritual healers. There is also a shortage of specialised mental health providers and units, limited financial resources and a low budget for mental health."

In the expert opinion of [the psychologist], [the applicant] would be best served by receiving mental health treatment in Australia due to the scarcity of possible treatment in Pakistan.

We submit that applicant's mental health issues would not only affect his ability to relocate and or repatriate to Pakistan but would impact on his ability to mitigate the general risk of harm he may face on return to Pakistan.

1. On 15 May 2024 and 5 July 2024, the applicant appeared before the Tribunal to give evidence and present arguments. On both occasions, he was assisted by his migration agent and an Urdu interpreter (CB 285-287, 312-314).
2. On 9 July 2024, the applicant's representative provided the Tribunal with a further letter from the psychologist dated 5 July 2024 (the second letter), which outlines the applicant's treatment plan and reiterates the scarcity and inadequacy of such mental health services in Pakistan (CB 316-319).
3. On 30 September 2024, the Tribunal affirmed the delegate's decision not to grant the applicant the visa (CB 329-351).

1. On 28 October 2024, the applicant lodged an application for judicial review in this Court pursuant to s 476 of the Act. That application contains the single following ground of review:
   1. The Second Respondent made a jurisdictional error by failing to consider whether the Applicant met the criterion for the grant of a protection visa set out in s 36(2)(a) of the Migration Act 1958 (Cth) on the basis that he would face a real chance of serious harm due to constructively being denied access to mental health services in Pakistan due to societal stigma.
2. The materials before the Court include:
   • the application for judicial review filed on 28 October 2024;
   • the affidavit of Hamish William Glenister affirmed on 24 October 2024 and filed on 28 October 2024 (taken as read and in evidence at the hearing on 18 June 2025);
   • a Court Book numbering 351 pages (marked as Exhibit 1);
   • written submissions filed on behalf of the applicant on 21 May 2025;
   • written submissions filed on behalf of the Minister on 4 June 2025;
   • the affidavit of Aneesha Satyendra affirmed and filed on 4 June 2025 (taken as read and in evidence at the hearing on 18 June 2025);
   • the affidavit of Hamish William Glenister affirmed and filed on 6 June 2025 (taken as read and in evidence at the hearing on 18 June 2025) (the Glenister affidavit);
   • supplementary written submissions filed on behalf of the applicant on 24 June 2025; and
   • supplementary written submissions filed on behalf of the Minister on 4 July 2025.

1. As noted above, the application solely challenges the Tribunal's approach to whether the applicant would face a real chance of serious harm due to "constructively being denied access to mental health services in Pakistan due to societal stigma".
2. In setting out the applicant's background, the Tribunal referred to the first letter from the psychologist as follows (at [29]):

The applicant provided a letter dated 27 April 2024 from [his treating psychologist]. The report indicates the applicant has consulted with him and diagnosed with posttraumatic stress disorder, major depressive order with anxious distress - severe. It recommends the applicant continue treatment on a fortnight to monthly basis. The report indicates the applicant is receiving medication managed by his general practitioner. The applicant feels helpless with regards to his mental state and visa situation. The report refers to the DFAT Report indicating limited assistance in Pakistan for those with mental health issues and should the applicant return to Pakistan, his psychological condition will significantly deteriorate and his risk of self-harm increase.

1. The Tribunal referred to the letter again at [60] and went on to state (at [61]-[62]):

The Tribunal referred to country information about mental health services available in Pakistan. While mental health assistance is available, it is limited, he may need to travel to obtain mental health assistance and he would have to pay for it. The Tribunal put to the applicant that there did not appear to be any reason he would be denied access to mental health services.

The applicant told the Tribunal that in Pakistan, a person seeing a psychologist is considered to be crazy, not like in Australia.

1. The Tribunal acknowledged the second letter as follows (at [65]):

An additional report dated 5 July 2024 was provided by the applicant's psychologist. It reiterated that the applicant required ongoing support and treatment to deal with his depression and other mental health issues. The writer concludes that due to the inadequacies of the general mental health services in Pakistan, the type of treatment required for the applicant would not be available and it is likely his psychological conditions will deteriorate.

1. In assessing the applicant's claims, the Tribunal identified that the applicant "fears harm returning to Pakistan due to his mental health issues" (at [76]). The applicant also feared generalised violence in Pakistan and that the Taliban would target him because he is an active member of the Pakistan Muslim League, although the Tribunal's findings about those claims are not in dispute.
2. The Tribunal accepted the applicant's mental health diagnoses as set out in the first letter, and acknowledged the psychologist's comments regarding inadequate mental health services in Pakistan and the significant barriers to accessing such services, including cost, cultural issues and distance (at [99]-[100]).
3. The Tribunal summarised the country information in respect of mental health treatment as follows:
   • Mental health care in Pakistan is poor (at [101]);
   • Rates of mental illness are significantly higher in rural areas (at [101]);
   • Few people seek treatment for mental health disorders, and will generally only do so if their condition becomes severe, with many people preferring to seek treatment through traditional healers and non-qualified practitioners (at [102]-[103]);
   • Supernatural beliefs and societal stigma are major barriers to accessing formal mental health treatment in Pakistan (at [102]);
   • Mental health care is part of the primary healthcare system and treatment is available through both public and private hospitals but these are concentrated in urban centres and most people prefer to seek treatment through informal traditional healers due to reduced stigma, lower costs and easier accessibility (at [103]);
   • Cost is a significant obstacle to accessing mental health care in Pakistan as basic public health care is free but does not cover mental health care, and mental health treatment through the private system is prohibitively expensive for most Pakistanis (at [104]); and
   • Since 2019, the Pakistani government has been rolling out a new mental health program (at [105]).
4. The Tribunal considered both letters from the psychologist, the report by Department of Foreign Affairs and Trade (DFAT) and further country information about the availability of mental health services in Pakistan. The Tribunal found that although mental health services in Pakistan have long been under-resourced, more resources are now being applied in that area. The Tribunal found that the applicant would be returning to his family in Pakistan, who run a successful cattle business from which he can derive an income, and he would therefore have the financial means to access mental health treatment in Pakistan albeit perhaps not at the same standard as in Australia (at [106]).
5. The Tribunal found that the applicant would be able to access health care in Pakistan at the same rate as other citizens and that he would not be denied access to basic mental health services for any reason. The Tribunal ultimately did not accept that the applicant would be subjected to any systematic and discriminatory conduct in Pakistan that would amount to a reach chance of him suffering serious harm (at [106]-[107]).
6. The Tribunal was not satisfied that the applicant was a refugee for any of the reasons specified in s 5J(1) of the Act, including membership of a particular social group, namely "persons with PTSD and major depression disorder, with anxious distress, severe" or for any other reasons including his mental health if he were to be removed to Pakistan now or in the reasonably foreseeable future (at [108]-[109]).
7. The Tribunal also assessed the applicant against the complementary protection criterion in s 36(2)(aa). The Tribunal accepted the applicant's diagnoses and acknowledged that mental health care in Pakistan is "not at an entirely satisfactory level" but found that the applicant could still access mental health care via both the private and public systems (at [114]).
8. The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa (at [125]).

1. As outlined above, the application for judicial review contains a single ground of review alleging that the Tribunal made a jurisdictional error by failing to consider whether the applicant met the refugee criterion on the basis that he would face a real chance of serious harm due to constructively being denied access to mental health services in Pakistan because of societal stigma (the stigma claim). The Minister accepted that if the Tribunal did fail to consider such a claim, it would be a material error.
2. The applicant submitted that there were two issues for the Court to determine in this matter. First, whether the stigma claim arose either expressly or on the materials, and in particular, the letters from the psychologist and the country information referred to in submissions by the applicant's representative. The second issue is if the claim did arise before the Tribunal, whether or not it was addressed by the Tribunal in its findings of greater generality. The Minister argued that the Court should not accept that the stigma claim was made expressly or was a claim which arose squarely on the materials.
3. It is well established that a failure by a Tribunal to consider a claim, or an integer of that claim, will give rise to jurisdictional error. In Singh v Minister for Home Affairs (2019) 267 FCR 200, Reeves, O'Callaghan and Thawley JJ (at [34]) held that a Tribunal, whose task is to review, may commit jurisdictional error by failing to engage in an active intellectual process or give proper, genuine and realistic consideration to:

(a) A "substantial, clearly articulated argument relying upon established facts" (citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed);

(b) A claim "raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review" (citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ); or

(c) A matter "that is an essential integer to an applicant's claim or that would be dispositive of the review" (citing ETA067 v Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ).

1. Where such a claim is apparent and is not mentioned in a Tribunal's reasons, an inference can be drawn that the Tribunal failed to consider that claim (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69]). However, the reasons must be read as a whole and they may demonstrate that a claim has been considered even if it is not expressly mentioned (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (WAEE) at [47]. In some matters, a failure to refer to certain material may be sensibly understood as material which was not considered by the Tribunal to be relevant (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [31]). Nevertheless, in some matters, it may be readily inferred that if the claim or evidence had been considered at all, it would have been referred to in the reasons, even if it was to reject the claim or attribute no weight to the evidence (Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34]).
2. In the Minister's submission, the applicant had made a claim that mental health treatment in Pakistan was inadequate because of its poor quality and the cumulative effect of barriers to access including availability, stigma and cost. The Minister submitted that the Tribunal was clearly aware that societal stigma was a barrier to accessing mental health treatment as it averted to country information which had mentioned this. The Minister submitted that it was unnecessary to make a specific finding in relation to whether the applicant would be constructively denied access to mental health treatment. This was because the crux of the applicant's claim was that he would be denied access to mental health treatment. The Minister submitted that the Tribunal clearly considered all of the reasons put forward by the applicant in totality, and accordingly, it was not necessary to consider each aspect individually.
3. The applicant submitted that the references to societal stigma as a barrier to accessing mental health clearly arose in the letters from the psychologist and the country information cited by the applicant's representative. The applicant also referred to the transcript of the hearing in the Tribunal and submitted that the applicant gave a forthright response when it was put to him by the Tribunal that he would be able to access mental health services in Pakistan. The exchange before the Tribunal is set out below (Annexure HWG1 of the Glenister Affidavit):

Member: While the country information does indicate that there are limited mental health issues, support, in Pakistan should you return. It is inadequate, but it is available. You may not be able to receive it in your home town and you may need to travel for support and you would have to pay for it.

Applicant: Are you talking about here in Australia or in Pakistan?

Member: No, I'm talking about Pakistan. I mean, the country information does indicate that it is limited and you would have to travel. There doesn't appear to be any reason you would, you would be denied access to mental health for reasons of your political, religion, race, nationality or, membership of a particular social group. But it is available. You may have to pay. You may have to travel and it is not as good as in Australia, but it is available for you in Pakistan.

Applicant: In Pakistan, the psychologist, those people who attend psychologists, they kind of throw stones on them. They think that those people are crazy, like here it is a normal thing. But in countries like us, they would make them suffer more.

1. The applicant observed that the Tribunal did not ask any follow up question from that exchange and moved on to another topic.
2. The applicant accepted that there was no duty upon the Tribunal to enquire. Nevertheless, the applicant submitted that on the material before the Tribunal, which included the reports from the psychologist and the relevant country information, there was a clear issue arising on those materials in respect of the social stigma which surrounded access to mental health services in Pakistan. That claim was clarified by the applicant at the hearing when he gave evidence that he effectively would "suffer more" if he accessed psychological services.
3. In the Court's view, it is clear that the stigma claim arose on the materials. It is mentioned in two separate reports from the applicant's treating psychologist. It is also referenced in a submission from the applicant's representative with specific reference to country information. It is also referred to in other country information the Tribunal clearly had regard to. Furthermore, the applicant's evidence before the Tribunal made a direct and express claim that people who accessed such services were regarded as "crazy".
4. In fact, the applicant's evidence before the Tribunal hearing went beyond a claim that he would be perceived as crazy if he accessed mental health treatment and actively said he would be made to suffer more harm. That is a direct and express claim and, as submitted by the applicant, the Tribunal just moved on at the hearing and did not address it in the reasons.
5. It is true that the Tribunal did refer to the country information which mentioned, inter alia, that there was a cultural stigma surrounding those who accessed mental health services. The Tribunal in fact acknowledged that "[s]upernatural beliefs and stigmas surrounding mental health in Pakistan represent a major barrier to accessing treatment through the formal medical system" (at [102]). It also mentioned that the applicant's psychologist observed that cultural issues were one of the significant barriers to accessing mental health services. However, it did not engage with that material in respect of the applicant's claims. The Tribunal's sole finding in this respect is as follows (at [106]):

...While the Tribunal acknowledges that mental health care is generally under-resourced in Pakistan, it appears that the issue has been recognised by the authorities and as such, more resources are being applied to improve mental health care within the country. The Tribunal notes that the applicant will be returning to his family and home area. The Tribunal also notes the applicant's evidence that the family run a successful cattle business based in Karachi from which the family derive an income which the Tribunal finds would enable the applicant to have the means to pay for mental health treatment. The Tribunal accepts that the standard and availability of mental health services in Pakistan would not be the same as that available in Australia. The Tribunal does not accept that as a Pakistani citizen, the applicant would be denied medical care or that he would be denied access to health care at the same rate or opportunity as any other citizen of the country. As a result, the Tribunal finds that the applicant would be able to access health care in Pakistan at the same rate as other citizens.

1. Nowhere does the Tribunal deal with the claim that the social stigma and the perception of people as crazy might be a barrier to accessing mental health services. Whilst the Tribunal set out some of the country information which mentions the stigma, its reasoning is entirely focused on whether the applicant would have the financial resources to access such services and that those services are improving. The Tribunal did not address the applicant's claim that he would not access such services because of the stigma of doing so, or his claim that he would face a greater harm if he did; nor, as observed above, did the Tribunal ask the applicant any questions in this respect.
2. When setting out the applicant's evidence in respect of this aspect of the applicant's claims, the Tribunal stated (at [61]-[62]):

The Tribunal referred to country information about mental health services available in Pakistan. While mental health assistance is available, it is limited, he may need to travel to obtain mental health assistance and he would have to pay for it. The Tribunal put to the applicant that there did not appear to be any reason he would be denied access to mental health services.

The applicant told the Tribunal that in Pakistan, a person seeing a psychologist is considered to be crazy, not like in Australia.

1. The Tribunal's reduction of the applicant's evidence to persons who seek such treatment being "considered to be crazy" also fails to acknowledge the applicant's additional claim that he would suffer more harm. Whilst admittedly somewhat opaque, that claim was not limited to the perception of such people. The Tribunal does not grapple with whether it is a separate harm claimed from the perception of such people as crazy. It was a distinct claim made by the applicant at the hearing and it was a claim which was embedded within both the opinion of the psychologist and the country information before the Tribunal.
2. In the Court's view, the Tribunal was required to engage with this claim and this material. It clearly arose from the materials before the Tribunal and an express, albeit somewhat unclear, claim was made by the applicant at the hearing. The Tribunal was not required to accept the claim. It was not required to make any further enquiry in respect of the claim. However, it was required to engage with and address the claim, and there is no evidence of that in the reasons. The Court accepts, as it must, that it should not scrutinise a Tribunal's reasons by searching for an error. At the same time, it cannot insert an evaluative process into a decision where the expressed reasons do not reveal such an exercise.
3. The Court has carefully considered the reasons of the Tribunal and does not accept that this is a matter where the Tribunal had made findings of greater generality which could be said to cover this claim. As observed above, the Tribunal appeared to be alert to the fact that country information suggested that social and cultural stigma acted as a significant barrier to accessing mental health treatment and that the applicant had made a statement that this would be a barrier for him. However, the Tribunal's finding as to the reasons why the applicant could access mental health care was limited solely to financial reasons and a slowly improving infrastructure. It is not possible to read the Tribunal's reasons and discern a more general finding that the Tribunal also rejected the applicant's claim that stigma would mean he would effectively be denied access to these services, or that this did not amount to a risk of serious or significant harm.
4. In reaching this conclusion, the Court has had regard to the well-established principle arising from WAEE where the Full Court observed (at [47]):

The inference that the [T]ribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the [T]ribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

1. The Court also notes that in DDK18 v Minister for Immigration and Citizenship [2025] FCA 712, Snaden J observed (at [38]):

Whether a decision maker has taken account of a particular matter in a particular way is a question of fact. In the absence of direct evidence about how the decision was made, it is a question that can only be answered by inference.

1. In this matter, the Court cannot make the inference that the Tribunal did have regard to either the claim or relevant material relating to the issue of whether societal stigma would prevent the applicant from access to mental health care. The Tribunal's reasons, when fairly read, only permit a conclusion that the Tribunal acknowledged that mental health services were not prevalent but that the applicant could afford to access those services. No other aspect of the applicant's claims were addressed. That finding cannot be parsed to discern a rejection or consideration of the other matters the applicant raised at the hearing, or which arose on the material before the Tribunal. The Court is entitled to treat what is said by the Tribunal as a complete explanation (see AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [61]). On this basis, the Court accepts the applicant's submission that it should be inferred that the Tribunal did not consider the stigma claim. Whilst in many cases a Tribunal's ultimate conclusion on a particular claim may be fairly read as encompassing other aspects of that claim which it does not mention, in this matter the Tribunal's conclusion is so specific and targeted that it can only sensibly be understood as a consideration and engagement solely with the financial aspects of accessing mental health treatment.
2. As observed above, the Minister accepted that if the Tribunal had failed to consider the stigma claim, then that would be a material error. The Court agrees. As submitted by the applicant, had the Tribunal considered and accepted that there was a real chance of the applicant being constructively denied access to mental health treatment due to societal stigma, it may have concluded that the applicant met the refugee criteria. As such, there was a realistic possibility of a different outcome (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [7]).

1. The Court was greatly assisted by, and commends, the collegial and practical approaches taken by counsel for both the applicant and the Minister.
2. In this matter, the applicant has succeeded in establishing jurisdictional error. Accordingly, the decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.