Federal Circuit and Family Court of Australia
(DIVISION 2)

BWC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 302 
File number(s):	SYG 1028 of 2018	
		
Judgment of:	JUDGE STREET	
		
Date of judgment:	1 November 2021	
		
Catchwords:	MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – where the applicant alleged to suffer significant mental harm – whether the Authority failed to have an evident and intelligible justification for its findings – whether the Authority failed to have a genuine intellectual engagement with the applicant’s claims and evidence – whether the Authority’s decision was legally unreasonable – whether the Authority failed to apply the real chance test – no jurisdictional error made out – amended application dismissed    	
		
Legislation:	Migration Act 1958 (Cth) pt 7AA; ss 5H, 36(2)(a), 36(2)(aa), 473CB, 473DD, 476   	
		
Division:	Division 2 General Federal Law	
		
Number of paragraphs:	54 	
		
Date of hearing:	1 November 2021 	
		
Place:	Sydney	
		
Counsel for the applicant:	Mr O Jones	
		
Counsel for the first respondent:	Mr J K Hoyle	
		
Solicitor for the first respondent:	HWL Ebsworths	

ORDERS
	SYG 1028 of 2018	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)	
BETWEEN:	BWC18
Applicant
	
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

order made by:	JUDGE STREET	
DATE OF ORDER:	1 NOVEMBER 2021	

THE COURT ORDERS THAT:

1.	Leave is granted to the applicant to rely on the amended application filed on 3 July 2019. 
2.	The amended application is dismissed. 
3.	The applicant pay the first respondent’s costs including reserve costs, fixed in the amount of $9,750.00. 

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
1	This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA made on 26 March 2018, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Safe Haven Enterprise Visa (“the Visa”).
Background
2	The applicant is a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil Hindu from the Northern Province who departed Sri Lanka illegally in September 2012. In summary, the applicant claimed to fear harm by reason of an imputed connection with the Liberation Tigers of Tamil Elam (“LTTE”), by reason of his Tamil ethnicity, and by reason of his illegal departure and being a returned failed asylum seeker. The applicant also claimed to fear harm from his mental condition linked to the suicides of his sister and brother.
3	On 4 September 2017, the delegate found that the applicant failed to meet the criteria for the grant of the Visa.
Before the Authority
4	On 7 September 2017, the Authority wrote to the applicant explaining that the application had been referred to the Authority for review. That letter provided an attached factsheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions, dated 8 October 2017, which included new information. The Authority evaluated the submissions and new information consistent with taking into account both limbs of s 473DD of the Act.  
5	In its reasons in paragraph 2, the Authority, importantly, clearly identified the applicant’s claim to fear harm arising from his mental condition linked to the suicides of his sister and brother. 
6	In his Visa application made on 6 September 2013, the applicant had provided information in support of his Visa application which indicated that he had two sisters and one brother, as replicated on page 154 of the Court Book; one sister who died in 2005 and, at that stage, a living brother and sister. The applicant provided further information at page 215 of the Court Book, identifying that he then had a family comprising only a sister and brother. 
7	A statement, dated 28 September 2017, provided by one of the applicant’s parents expressed concern in relation to the applicant’s mental health because of the suicide of his sister and brother. No reference is made to the death of the earlier sister. The applicant did not in his Visa claim or in his statement make any claim to fear harm by reason of the death of his first sister or in relation to the events that obviously had not yet come to pass in respect of his other sister and brother, nor did the applicant raise, in his Visa claim, concern in relation to mental health. However, it is clear that the delegate identified a concern in that respect and addressed the same.  
8	The submissions provided by the applicant to the Authority, dated 8 September 2017, made reference to the applicant’s three siblings having committed suicide. There is no evidence in relation to the first sister that had died in 2005 committing suicide, although there is a detailed discussion in the Authority’s reasons identifying the absence of any information concerning that sibling provided by the applicant. This appears at paragraph 65 of the Authority’s reasons.  
9	In its reasons, the Authority clearly dealt with the two suicides and the social worker reports provided, dated 7 August 2017 and 26 September 2017. The Authority, relevantly, identified the background to the Visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority referred to the submissions and the attachment to the submissions. No criticism is made of the Authority’s reasons in relation to what was identified as the new information and the failure to meet the criteria under s 473DD of the Act, where the Authority found that there were not exceptional circumstances justifying considering the same. 
10	The Authority set out the applicant’s claims in detail and referred expressly, in that respect, to the sister who committed suicide in 2016 and to the brother who came to Australia and committed suicide in November 2016. The Authority summarised the events that the applicant had identified in his supplementary statement and set out the relevant law.
11	The Authority addressed the low level activity of the applicant in relation to Facebook activity. The Authority then turned to the issue of the suicide of the sister in June 2016 in paragraph 61 of its reasons, which also touched upon the applicant’s brother’s death by suicide in November 2016.  
12	In paragraph 62 of the Authority’s reasons, the Authority referred to questions that the applicant received in relation to those deaths. The Authority identified considering first the claim that the applicant will be driven to commit suicide. 
13	The submissions dated 8 October 2017, in addition to having made reference to the three siblings, referred to the applicant fearing harm due to his mental health condition and risk of self-harm due to the applicant’s pre-existing medical condition. The submissions also made reference to the applicant’s Tamil ethnicity, coupled with his own vulnerability, and the need in assessing the applicant’s risk of future harm to take into account the applicant’s mental health. The submissions made reference to the patients like the applicant, who has an existing medical/mental health condition, and though there may be government run mental health facilities that the applicant could access, it is the treatment the applicant would be subjected to by the Tamil community that could result in him facing harm.  
14	Reference was made to the applicant being extremely vulnerable due to his pre-existing mental health condition, the social stigma that he would face by members of his society due to his mental health condition, and due to the suicide death of siblings, one linked to an alleged immorality. The submissions refer to the risk of self-harm and of suicide. The submissions advanced that the applicant was an elevated risk of being exposed to harm upon return and could become more vulnerable due to the way he is treated by members of his community. The submissions advanced that there was a real risk of self-harm despite the applicant having no history of self-harm and again the reference to three siblings. 
15	The Authority, in turning to consider whether the applicant may commit suicide, addressed the substance of the accredited mental health social worker report dated 7 August 2017. The Authority also referred to the further report as being consistent with the applicant having focused on the more recent death of his brother and sister, which was the substance of the focus in the report dated 7 August 2017. There was a recommendation for commencing counselling sessions to monitor the applicant’s mental state and to facilitate effective coping strategies.  
16	The psychologist also made reference to a GP having commenced the applicant on antidepressants due to his acute systems of depression. It also referred the applicant for a psychiatrist’s detailed review. No detailed psychiatrist review was provided to the Authority.  
17	The Authority referred to the second report repeating, in substance, the same observations, and that the applicant had become very depressed about his Visa decision and feeling hopeless, helpless and worthless, and admitted to feeling suicidal, and worried about his parents who are worried about his safety if he were to return to Sri Lanka.  
18	The Authority made express reference to the report, making the same comments in relation to counselling referral and commencement on antidepressants. The Authority noted that there was no further information before the Authority to indicate that the applicant has been seen by a psychiatrist or a psychologist, has been identified by his GP or any other medical practitioner as having any suicide ideation or threats to self-harm, or that he has been referred to any crisis assessment team or any other intervention in respect of any suicide risk. The Authority identified that the information does not indicate that the applicant has been considered or referred for any hospitalisation or inpatient treatment.
19	The Authority referred to the August 2017 report, which alleged that the applicant will be at significant risk of harm if returned to Sri Lanka, as not having identified any factors or circumstances that would lead to this risk other than applicant’s self-reported history, including claimed interrogation in Sri Lanka.  
20	The Authority identified having found that the applicant was not a person of adverse interest to the authorities in Sri Lanka and that the incidents of questioning that the applicant reported were low level routine questioning, such as was experienced by nearly all Tamils living in the North and East of Sri Lanka during the conflict. The Authority also made reference to the fact that the applicant reported to the mental health social worker that he had his third sibling who committed suicide in Sri Lanka.  
21	It was in this context that the Authority noted that the applicant had not referred to this sibling or this incident in any of his statements, at the interview or in his post-interview submissions. The Authority correctly identified that there was no other information in respect of this third suicide, which is clearly a reference to the information provided by the applicant. 
22	The Authority accepted that the applicant is suffering from grief, loss and depression resulting, in a large part, from the two suicides as well as his own uncertain migration status. The Authority accepted the circumstances in relation to his sister’s suicide, including that the comments made would be particularly distressing and that the applicant would be distressed dealing with questions and comments from friends in his community. 
23	However, the Authority took into account the medical evidence referred to, which indicated that the applicant is not being identified as a person requiring intervention, hospitalisation or other significant treatment. The Authority also took into account that the distress the applicant may suffer from dealing with questions from friends in the community, whilst unfortunate, is not conduct which amounts to serious harm in the relevant sense. 
24	Having regard to all of the above information, the Authority was not satisfied that the applicant faced a real chance of serious harm arising from the suicides of his siblings or questions he may face if he returns to Sri Lanka. 
25	The Authority then turned to consider whether the applicant faced a real chance of persecution because of his identified mental condition. The Authority referred to country information that universal free healthcare is available throughout the Sri Lankan public health system, but that facilities vary and some medicines or treatments may need to be purchased from private providers. 
26	The Authority made reference to the fact that mental health services are scarce and that there is a general lack of institutional capacity to respond to mental health care needs. The Authority also made reference to mental illness not being widely discussed in Sri Lankan society and that this can be a barrier to an individual seeking proper treatment. The Authority made reference to the issues that it identified, and that the material does not contain any other medical evidence in relation to the applicant’s current condition, treatment requirements or recommendations for ongoing care or management.  
27	The Authority identified that there is no information that indicates the applicant has been hospitalised or that he has been assessed as requiring any form of intervention in relation to any suicide risk. The Authority referred to the fact that the information does not indicate that the applicant would be unable to access or be denied access to the Sri Lankan health system and appropriate care. The Authority also noted that the applicant’s parents continue to reside in Sri Lanka, with his father and mother in the family home, and that the applicant does not claim to be unable to return to live with either parent. 
28	The Authority observed that, considering that the applicant residing with his parents would help provide him with a degree of stability and support as well as helping him to access healthcare services and cope with the situation. The reference to coping with the situation was clearly a reference back to the coping issue raised in the psychologist’s reports. 
29	The Authority made reference to the applicant fearing harm from his community because of his membership of a particular social group, being Tamils. The Authority also referred to the applicant’s submission that Tamil males are at risk of suffering severe and/or significant harm given the manner of treatment they may face by members of their own community, coupled with their own vulnerability.  
30	The Authority made reference to the submission in relation to the applicant’s mental state, which may lead him to react in a manner that could expose him to serious and/or significant harm. The Authority noted that, apart from the hurtful comments, the applicant has not claimed that his parents have expressed any harm at the hands of the community. The Authority accepted that mental problems can carry some social stigma at the community level.  
31	The Authority made further reference to the applicant having not provided any other evidence, and that the review material does not indicate that persons in the applicant’s position have been subjected to harm by their local communities beyond this stigma. The Authority made reference to the submission that the applicant may react in a manner that could expose him to harm is speculative and took into account that, if he does return to his village, he will be able to live in the family home with his mother and will not be living on his own within the community. The Authority made the same observations in relation to if he lived with his father.  
32	The Authority accepted that it would be distressing for the applicant if his community ignores him or avoids him, however the Authority did not consider that this conduct amounts to serious harm. The Authority referred to the submission that it was necessary to consider whether his condition may be exacerbated as a result of any physical harm that he may experience. The Authority found that the applicant does not face a real chance of harm at the hands of his community. The Authority took into account that the applicant is not of any adverse interest to the authorities and does not face a real chance of harm from the authorities. 
33	The Authority found that the applicant does not face a real chance of harm arising from any physical harm causing an exacerbation of his condition. The Authority was not satisfied that the applicant would face a real chance of harm arising from his mental health condition.
34	The Authority referred to the applicant being a young Tamil male from the Northern Province. The Authority was satisfied that the position of the Tamils had significantly improved and found that Tamils do not face a real chance of harm on the basis of their ethnicity. The Authority was not satisfied that Tamil males face a real chance of harm based on their age, their ethnicity and geographic origin and/or location. 
35	The Authority referred to the applicant’s illegal departure and was satisfied that the applicant will not be treated differently from other returning asylum seekers who have no adverse security profile. The Authority was also satisfied that there is not a real chance that the applicant will be subjected to harm because he is a returning asylum seeker.  
36	The Authority did not consider that the brief period of detention and even poor conditions rise to the level of a threat to the applicant’s life or liberty or to significant physical harm or ill treatment, or that otherwise amounts to serious harm. The Authority made reference to the fact that, apart from the mental health social worker reports, there is no other medical or psychological evidence in the material. The Authority made reference to there being no information before the Authority that the applicant received or continues to receive any ongoing treatment other than antidepressant medication.  
37	The Authority made reference to there being nothing before the Authority which indicates that persons held in detention in Sri Lanka are denied access to medical treatment, including mental health treatment or medication. The Authority was satisfied that the applicant will not face a real chance of harm on this basis if he was held in short detention. 
38	The Authority was not satisfied that the applicant would face a real chance of serious harm as a returned asylum seeker or for having departed Sri Lanka illegally. The Authority was not satisfied that the applicant faced a real chance of serious harm because of any reason from the suicides of his sister and brother, including comments on Facebook, social media or any reason associated with his mental health, or for having departed Sri Lanka illegally. 
39	It was in those circumstances the Authority found that the applicant did not meet the definition of a refugee in s 5H(1) of the Act, and that the applicant did not meet the criteria in s 36(2)(a) of the Act.  
40	In considering the issue in relation to complementary protection, the Authority made express reference to the applicant potentially being distressed and upset because of questions from his friends and community about the suicides in his family. The Authority made reference to there being nothing in the review material which indicates that this distress or upset will include or lead to any conduct which would or could constitute significant harm. The Authority was not satisfied that the applicant faces a real risk of significant harm because of these questions from friends and the community. 
41	The Authority made reference to having noted that Sri Lankan public health facilities vary and some medicines or treatment may need to be purchased from private health providers. The Authority made reference to mental health services being scarce and that there is a general lack of institutional capacity to respond to mental health care needs.  
42	The Authority, again, made reference to mental health illness not being widely discussed in Sri Lankan society, and that this can be a barrier to individuals seeking treatment. The Authority accepted that these are difficulties which the applicant may face. The Authority identified taking into account that the applicant has not been diagnosed as requiring hospitalisation, inpatient treatment or other significant healthcare beyond antidepressant medication. The Authority was satisfied that the difficulty the applicant may face in relation to his mental health condition are not, singularly or cumulatively, conduct that would constitute significant harm.  
43	The Authority made reference to taking into account the findings made, that the applicant does not face a real chance of serious or significant harm, including physical harm, from the authorities or his community which may exacerbate his mental condition. The Authority was satisfied that the applicant does not face a real risk of significant harm because of his mental condition, including for any reason linked to the suicides of his siblings.
44	It is in those circumstances that the Authority was not satisfied there are substantial grounds for believing it is a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act, and affirmed the decision of the delegate under review.
Before the Court
45	These proceedings were commenced on 12 April 2018. On 3 July 2019, an amended application was filed raising the following Grounds:
The Authority at AB 699 [68] and AB 706 [107] of its decision made a jurisdictional error by failing to apply the real chance test, observe the law of legal unreasonableness or by failing to engage in proper, genuine and realistic consideration with respect to the mental health condition of the Applicant.
a.	The real chance test requires a chance that is substantial and not remote or far-fetched, regardless of whether it is less or more than 50 per cent (see Chan v Minister for Immigration and Ethnic Affairs (1989 169 CLR 379 (Chan) at 389, 398, 407, 429; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [242]-[247]);
b.	The law of legal unreasonableness required an evident and intelligible justification for the Authority’s decision (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10]);
c.	Proper, genuine and realistic consideration requires the Authority to engage in an active intellectual process directed towards the Applicant’s case (see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45]);
d.	The Authority at AB 699 [47] and AB 706 [107] of its decision noted the scarcity of mental health treatment in Sri Lanka;
e.	The Authority noted that the Applicant had not so far required hospitalisation or required intervention in relation to a suicide risk;
f.	The Authority had evidence before it that the Applicant had been taking antidepressants (see at paragraph 62);
g.	The Authority failed to assess whether the was a real chance that the Applicant would deteriorate including in the absence of antidepressants;
h.	The Authority made a finding for which there was no justification, namely that the Applicant would not deteriorate regardless of whether he had access to anti-depressants;
i.	The Authority did not engage in an active intellectual process with respect to the significance of the fact that the Applicant had been taking anti-depressants. 
46	Mr Jones of Counsel, on behalf of the applicant, identified the material available from the psychologist’s report and the findings of the Authority. Mr Jones contended that the decision revealed a want of reasonableness in the consideration of the applicant’s mental health condition.  
47	It was advanced that there was no basis for concluding that the antidepressants would be available to the applicant, let alone that the applicant could afford such medication. It was submitted that it was not open to the Authority to proceed on the basis that the applicant’s condition would never deteriorate and that all he would ever need would be antidepressants. It was submitted that it was not appropriate for the Authority to treat the support from the applicant’s parents in a way that substituted for professional mental health services. It was also submitted that it is quite possible, in the absence of treatment for his mental health, that the applicant would experience serious harm within the meaning of that term in the legislation.  
48	The applicant’s supplementary submissions sought to engage with the Minister’s submissions about the applicant’s claims. It is apparent that the Authority squarely treated the applicant as having raised a claim to fear harm by reason of his mental health condition. That claim to fear harm included his Tamil ethnicity and was the subject of dispositive findings by the Authority, which were open for the reasons given by the Authority, and cannot be said to be legally unreasonable.  
49	The core of Mr Jones’ submissions is to advance that, having identified the potential need to purchase medicines and the scarcity of institutional health capacity, it behoved the Authority having a genuine intellectual engagement with the applicant’s submissions and/or as a matter of legal unreasonableness to consider what would occur if the applicant was unable to access the antidepressants and/or unable to access the mental health facilities. This is, in substance, an invitation to merits review. 
50	It’s clear that the Authority appreciated the scarcity of those resources and appreciated that medicines sometimes had to be the subject of purchase from private providers. They were both matters taken into account by the Authority in its findings in respect of the applicant’s particular condition. Given the absence of other evidence about a particular need for ongoing treatment from a GP, or a history of having been hospitalised, or being an inpatient, or having other significant healthcare beyond antidepressant medication, the Authority found that the applicant did not meet the criteria in relation to complementary protection. 
51	The Authority also clearly took into account the applicant’s ability to provide support in terms of coping, which was the term used by the psychologist from living with one or other of his parents. The adverse findings by the Authority are not ones to which it could be said that no reasonable decision-maker could come. Further, the Authority provided an evident and intelligible justification for the adverse finding in relation to the applicant not facing a real risk or a real chance of serious harm because of his mental health, being the fact that the applicant had not been diagnosed as requiring hospitalisation, inpatient treatment or other significant healthcare, and having identified that medicines can be purchased from private providers, and having identified that the applicant would be living with one or other of his parents. 
52	The Authority correctly identified the relevant law. There is no substance in the proposition that the Authority failed to apply the correct test in relation to the Refugees Convention, or in respect of complementary protection. The Authority correctly identified the relevant law and the reasons are consistent with correctly applying the relevant law. There is no substance in the proposition that the adverse finding by the Authority in respect of the applicant’s mental health was legally unreasonable given the above evident and intelligible justification in the Authority’s reasons. Nor is this a case where the Authority has failed to have a proper, genuine and realistic consideration and engagement with the applicant’s claims and evidence in respect of his mental health condition. The reasons as summarised above squarely contradict that proposition.
53	The Authority’s reasons clearly took into account the difficulty that the applicant may face in obtaining antidepressants from the free healthcare system by reason of the reference to the ability to purchase medications privately. The Authority clearly took into account the mental health condition and the access that the applicant would have, whilst scarce, to the resources in Sri Lanka. There was no failure by the Authority to have a genuine intellectual engagement with the applicant’s claims in relation to the treatment that he had been receiving in respect of antidepressants, which was clearly identified by the Authority in its reasons. 
54	No jurisdictional error as alleged in Ground 1 of the amended application is made out. Accordingly, the amended application is dismissed.

I certify that the fifty-four (54) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 November 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 15 February 2022