Okoh v Minister for Immigration, Citizenship, Migrant Services and... [2022] FCA 1011 | Case summary

CONSIDERATION OF FIRST GROUND 28 The mental health of a non-citizen is a relevant matter in considering the impediments that person may face if returned to their country of origin. The Tribunal found that the applicant "reports no diagnosed medical or psychological conditions". This in itself is a correct finding of the Tribunal based on the applicant's own statements to the Tribunal. 29 I accept that in some circumstances, a statement from the applicant himself as to his self-perceived or self-reported mental health status may not obviate the requirement of the Tribunal to consider the expert and other material before it if the applicant himself demonstrated potential mental health issues and the evidence showed clear current mental health problems. This is not the circumstance that confronted the Tribunal. 30 In my view, the Tribunal properly considered the actual representations made by and on behalf of the applicant about the applicant's mental health, taking into account the nature, form and content of those representations, as referred to in Plaintiff M1 quoted above. 31 I will now set out the representations relied upon by the applicant in relation to his mental health. 32 In support of his first Tribunal application, the applicant provided to the Tribunal a report of a psychologist, Dr Phil Watts, dated 5 July 2020 (the 'Watts Report'). The Watts Report documented Dr Watts' psychological assessment of the applicant for the purposes of determining the applicant's risk of reoffending. The assessment involved a telehealth consultation and the completion of a standardised personality test called the "Personality Assessment Inventory". The report was prepared by Dr Watts for the purpose of giving expert evidence to the Tribunal. 33 First, Dr Watts made the following statements in relation to the applicant's "Clinical Presentation" (at [8]-[9]): Mr Okoh did not present as suffering from any cognitive impairment. His attention, concentration and memory seemed appropriate. Mr Okoh described a number of feelings of stress and depression, but did not present with any major mental illness, such as schizophrenia or bipolar disorder. 34 Dr Watts then set out his findings in relation to the personality test, including the following relevant statements (at [25]-[26]): The Personality Assessment Inventory was completed using corrective services norms. This enables me to compare his behaviour compared to offenders and to the normal population. Mr Okoh showed moderately high levels of stress, depression, anxiety and paranoia. I note particularly that the Trauma scale was elevated. This was likely to have been as a product of witnessing the incident where the Christians were attacked by Muslims and/or his friend dying. The depression was showing as clinical depression. The paranoia particularly showing difficulties in trust relationships. 35 Dr Watts' conclusion (at [33]) as to the applicant's risk of reoffending was as follows: In conclusion, this 26-year-old man from Nigeria has been able to educate himself both in Nigeria and Australia, held a number of different jobs, but also got drawn into a scheme where co-offenders set up an elaborate scheme to get passwords and details and would then issue modified invoices, and Mr Okoh would receive the money into his personal bank account. As stated earlier, while motivated by greed there is a strong naivety aspect to this offence (giving a bank account with your own details). This assessment would indicate that offending is not part of Mr Okoh's normal character. The likelihood of reoffence is low, but the seriousness of the action is acknowledged. 36 It is important to note this report was dated 5 July 2020. The Tribunal hearing under review here was on 31 May 2021 to 2 June 2021. 37 In addition to the Watts Report, the applicant provided to the Tribunal a letter of support from another psychologist, Mr Uwe Schaub, dated 17 March 2021 (the 'Schaub Letter'). Mr Schaub was the applicant's treating psychologist for a total of twelve sessions while the applicant was in immigration detention. 38 In his letter, Mr Schaub relevantly said: Mr OKOH met the criteria for PTSD [post-traumatic stress disorder] and was referred to me for treatment. He also complained about sleep disturbances and frequent nightmares, as well as periods of anxiety and depression. As an EMDR [eye movement desensitisation and reprocessing] practitioner I am aware that EMDR is the best treatment choice for individuals suffering from PTSD, but I am also aware that providing EMDR in an environment like YHDC [Yongah Hill Detention Centre] is not recommended. Hence, Mr OKOH's intervention included only some aspects of EMDR (specifically the grounding component). He was also provided with psycho-education, CBT [cognitive behavioural therapy], Mindfulness, and various strategies to address his problems with sleep and nightmares. Furthermore, he was taught visualisation, breathing and relaxation exercises to manage distress. Mr OKOH was very committed to his intervention as was indicated by his diligent engagement. As a result, he reported improvements in all areas and total absence of nightmares and the absence of sleep difficulties. Mr OKOH has demonstrated good attention and recall, good understanding and application of information, and impressed as calm and settled as well as emotionally resilient with a positive outlook. Despite his less than favourable environment, Mr OKOH nowadays presents as a calm and approachable individual who is goal directed. He also demonstrated insight, empathy, and remorse over the crime he committed. Mr OKOH stated to me that he has separated himself from negative peer influences and that he was now very selective of those individuals he voluntarily associates with. I hope that my stated observations and experiences with Mr OKOH assist in formulating a clearer picture of his mental health and his character. 39 The Schaub Letter was written in support of the applicant for the purposes of the Tribunal hearing and was accepted by the Tribunal as lay evidence rather than expert opinion evidence, and so limited weight was placed on it by the Tribunal (at [127] of its reasons). The Tribunal's conclusion in this regard was not put in issue by the applicant, and so the applicant relied on the Schaub Letter to show that the applicant had been receiving treatment from a psychologist, had reported various symptoms prior to treatment, and that certain aspects of the treatment could not be delivered because of his continued detention. 40 It is significant that the third party evidence (expert or otherwise) relied upon by the applicant before the Tribunal (which is now relied upon by the applicant to support his contentions in this Court in relation to the extent of 'impediments if removed') was in the context of the issue of the risk of his reoffending. The evidence was relied upon before the Tribunal to demonstrate that the risk of his reoffending was 'low' or minimal. They do not contain any representation in relation to any mental health impediment to return to Nigeria. 41 Prior to the Tribunal hearing, the applicant provided to the Tribunal a statement of facts, issues and contentions dated 3 May 2021 ('SOFIC'). 42 In the SOFIC, under the heading "Extent of impediments if removed", the applicant's counsel said (at [58]-[59]): There is no impediment to the Applicant establishing himself in Nigeria presented by his age, health, language or culture. The real impediments to the Applicant establishing himself in Nigeria will be his separation from his partner, family, nieces and nephews, and the additional financial burden he will be for his parents. This will be a source of stress in his life that may impede his ability to establish himself and maintain a basic standard of living. 43 At about the same time that the SOFIC was provided, the applicant also provided to the Tribunal an undated witness statement. 44 In the witness statement, the applicant said under the heading "My rehabilitation in detention since 6 January 2020" (at [27]-[30]): I have voluntarily assessed mental health and engaged with their practitioners on and off the centre after receiving a reply from the AAT last year August (2020). I have had psychological intervention, and spoken with psychologist on and off the centre for over 12 sessions. … Cognitive Behaviour Therapy (CBT) when used properly would enable me to predict situations, be mindful of and managing my negative thoughts, recognise and manage my emotional state, learn to recognise and manage my physical state with the corresponding behaviour while also providing contingencies plan - good alternative. This psychological and emotional growth I have undertaken will keep me safe, the victims safe and the community safe if given a second chance. 45 In the witness statement, the applicant also said (at [46]-[47]): Incarceration has … allowed me to reflect on my past decisions, reflect on who and what matters to me, and what direction I want to head in moving forward. This has been a "time-out" to reconstruct my life, mentally and physically prepare for the future. From the moment I was charged to this day, I see all the measures I have taken as a journey of self-discovery. I am more motivated than ever and physically in the best shape of my life. I consider myself to be much better off than at the time of my offending. 46 In his witness statement (at [60]), the applicant gave evidence of his intention to continue counselling and enrol in support groups, and also to "stay connected to the right people and disconnected from wrong doers and troublemakers". The witness statement does not specifically refer to an intention to continue mental health treatment by a medical professional. 47 On 31 May and 1 June 2021, the applicant attended a hearing before the Tribunal, at which he was represented by solicitors and counsel. 48 In the course of the applicant's evidence on 31 May 2021, the following exchange occurred in relation to the mental health services accessed by the applicant during his time in immigration detention (SCB 98): MR GLENISTER: So do you think that the mental health services helped you? APPLICANT: Yes, it really helped me. I think that was the place where I could really open up and I could see the choices I made. I could understand the pain, the shame and the loss of trust the victims felt. 49 Later in the course of the applicant's evidence on 31 May 2021, the following exchange occurred (SCB 152): TRIBUNAL: [I]f you were returned to Nigeria, you talk about the things that you're worried about, you're concerned about if that happened. I just want to give you another opportunity to explain to me, what are the things that you're concerned about? APPLICANT: My mental health, job, the poverty. TRIBUNAL: Sorry, what was that? APPLICANT: Poverty. No adequate healthcare. TRIBUNAL: I understand your evidence in your personal circumstances form, it says you're fit and have never felt better. Are you referring to any - having any health conditions at the moment? APPLICANT: Please come again, Senior Member. TRIBUNAL: [You say in] your documents that you have no health conditions or medications. When you say no adequate healthcare, are you referring to that because you have some conditions you need to tell me about or medication that you're receiving? APPLICANT: No, Senior Member. I don't have - the medication I'm on at the moment is just the sleeping pills. TRIBUNAL: So you're concerned about your mental health, no job, poverty, no adequate healthcare… 50 The "personal circumstances form" referred to in the transcript was submitted by the applicant to the Department of Home Affairs on 14 October 2019 immediately following the Minister's mandatory cancellation decision. Under the heading "Impediments to return" (at CB 118), the applicant had checked "No" to the question "Do you have any diagnosed medical or psychological conditions?" and "N/A" to questions regarding any medication he was taking and regarding any treatment he was receiving from a medical professional. 51 In the course of closing submissions on 1 June 2021, the applicant's counsel made the following submission (SCB 221): The impediments consideration, now, obviously, the applicant is very concerned about being removed to Nigeria but, given that that consideration is all about whether he can establish himself to a basic standard of living, I put it no higher than what has been put in the applicant's Statement of Facts, Issues and Contentions, which is that, while it will be, obviously, be very upsetting for him to be removed, he'll, obviously, be a burden on his parents, which the evidence tended to suggest are reliant already on his siblings in Australia to support themselves and that that may have some impact, or cause him some difficulty, in establishing himself. I accept that if there is any weight to be given to this consideration, it will be slight and that these issues will be transient in nature in the sense that, given his qualifications, his age, his health, and the fact that he can speak the language, that he will eventually be able to establish himself. 52 Contrary to the applicant's submissions, when these representations are considered as a whole, they show that: (1) on 5 July 2020, Dr Watts' opinion was that: (a) the applicant was not suffering from any cognitive impairment or major mental illness; (b) the applicant showed moderately high levels of stress, depression, anxiety and paranoia; and (c) the applicant's depression was capable of being characterised as clinical depression; (2) subsequently, while in immigration detention, the applicant received treatment from psychologists, and that treatment brought about significant improvements in the applicant's mental health; (3) by about 3 May 2021 (the date of the SOFIC and, it can be inferred, the undated witness statement), there was no claim of impediment to the applicant establishing himself in Nigeria by reason of his health, and the applicant claimed to be in the best shape of his life; and (4) on 31 May 2021, while the applicant expressed concern about his mental health should he be returned to Nigeria, the applicant also asserted he had no health conditions, and the only medication that he was taking was sleeping pills. (5) on 1 June 2021, in closing submissions before the Tribunal, the applicant's counsel confirmed that the position stated in the SOFIC continued to apply - namely, that there was no impediment to the applicant establishing himself in Nigeria by reason of his health. 53 Having particular regard to the principles from ESQ18 I set out earlier in these reasons, it cannot be concluded that a claim that the applicant's mental health was an impediment to his return to Nigeria was a substantial or clearly articulated argument or otherwise clearly arose from the materials. In particular, the Watts Report and the Schaub Letter did not contain any representation as to any mental health impediment to the applicant's return to Nigeria. While the applicant expressed concern about his mental health at the Tribunal hearing, after having regard to his further answers to the Tribunal's questions and his counsel twice submitting that there was no impediment due to the applicant's health, the Tribunal would be entitled to consider that the mental health impediment claim was not pressed. In light of the applicant's evidence and submissions as a whole, I do not consider that any such claim triggered the Tribunal's duty to consider the extent of such an impediment under clause 9.2 of the Direction. 54 In any event, the Tribunal did to some extent consider the applicant's health in its reasons, and I will now assess the Tribunal's consideration of the applicant's mental health issues in the context of the nature, form and content of the applicant's representations above, 55 The Tribunal referred in detail in its reasons to the sections of the Watts Report (at [114]-[115]), the Schaub Letter (at [106] and [127]) and the applicant's undated witness statement (at [106]-[107]) in relation to the applicant's personality and mental health rehabilitation, albeit in the context of considering the applicant's risk of reoffending. However, the ready inference is that the Tribunal considered those materials as a whole. 56 The Tribunal also expressly referred to the response that the applicant gave when the Tribunal asked about the fears he might have about being returned to Nigeria. In relation to that evidence, the Tribunal's reasons (at [63]) are as follows: When asked to elaborate on any fears he might have about repatriation, the Applicant responded that he was concerned about "my mental health, job, poverty, no adequate health care … no pensions from the Government." When put to the Applicant that his evidence did not disclose any current health conditions or medication, he agreed, stating that he was only currently taking sleeping pills. … 57 Again, the only available inference is that the Tribunal considered the applicant's evidence on that point, including his evidence that he feared returning to Nigeria because of "my mental health" and "no adequate health care". 58 Later in its reasons under the heading "Tribunal consideration: Extent of impediments if removed", the Tribunal said the following (at [170] and [172]) (citations omitted): The Applicant is 27 years of age, reports no diagnosed medical or psychological conditions, claims to be in the best physical shape of his life, and aspires to an immediate resumption of work if released. He conceded there is no impediment to re-establishing himself in Nigeria presented by his age, health, language, or culture… … It is submitted on the Applicant's behalf that the principal impediments confronting him if removed are separation from his partner and other family members in Australia, and the 'additional financial burden he will be for his parents,' which will cause stress and 'may impede his ability to establish himself and maintain a basic standard of living.'… 59 Then, under the heading "Tribunal findings: Extent of impediments if removed", the Tribunal said (at [173]) (citations omitted): The Applicant has spent most of his life in Nigeria. He completed an undergraduate degree there as an adult and then completed another undergraduate degree in Australia. He is a relatively young man in his 20s, in good health, and reports a consistent history of work. There are no age, health, linguistic, or cultural barriers to his repatriation. There is also no evidence he would be treated differently to any other Nigerian citizen. Given the available evidence, the Tribunal is satisfied he has the capacity to establish himself and maintain basic living standards, in the context of what is generally available to other Nigerian citizens. 60 Further, the Tribunal found at [175] that there was "no evidence he is unable to rely on practical and emotional support from his parents, sister and perhaps past friendship networks if required to re-establish himself in Nigeria." 61 It is significant that the applicant's counsel expressly made the point - both in the SOFIC and in closing submissions - that there was no impediment to the applicant returning to Nigeria that was presented by his health. While the Tribunal is not bound to accept this position made by or on behalf of a party to a review, this statement was consistent with: (1) the evidence before the Tribunal which showed that the applicant's mental health had improved since the date of the Watts Report; and (2) the applicant's own evidence that, by the time of the Tribunal's decision, he was in the best shape of his life, had no health conditions, and was not taking any medication except sleeping pills. 62 Counsel for the applicant submitted that the Tribunal misunderstood the applicant's representations during the hearing, and in particular that he was currently "just" on sleeping pills, as a concession that he did not suffer from any health conditions. It was submitted that this evidence should have been considered and weighed against the expert opinion of Dr Watts. 63 It is true that the Watts Report describes the applicant's mental health in negative terms and the Tribunal, although extracting this part of the report in its reasons, did not specifically comment on this part of the report at all or cross-examine Dr Watts during the hearing. However, the Tribunal (at [115] of its reasons) did note the shortcomings of the Watts Report generally, and in particular Dr Watts' limited contact and assessment of the applicant. It is important to remember that, at the time of the Tribunal's consideration, Dr Watts' findings were historical, based on a single consultation and standardised personality test, and must be read in light of the later representations of the applicant, of his legal representative, and in the Schaub Letter (although not an 'expert' medical report), and the Tribunal's direct inquiry of the applicant as to his health, including his mental health. 64 Counsel for the applicant also submitted that while the evidence of the applicant and the Schaub Letter suggested that his mental health had improved while he was receiving treatment, this indicated that he was in fact in need of such treatment. Further, the Tribunal did not consider the issue of how the applicant's mental health issues would be treated should he be returned to Nigeria. 65 Again, the inference that the applicant required continued mental health treatment must be considered in light of the applicant's representations as a whole. Ultimately, the applicant's SOFIC and closing submissions to the Tribunal did not press the claim that his mental health issues were an impediment to his return to Nigeria, nor was Dr Watts' or Mr Schaub's evidence as to the applicant's underlying mental health condition (as opposed to his reduced risk of reoffending) raised or relied upon before the Tribunal. 66 Having regard to the nature, form and content of the representations as to the applicant's mental health issues over the course of the Tribunal's review and the Tribunal's consideration of the applicant's mental health in the context of his risk of reoffending and then its specific finding in the context of any impediments to return, the Tribunal did not fail to consider the applicant's claims such as to amount to jurisdictional error.

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

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